5-7^7 m ^OOITMSBLOR'at LAW^ (Jnrnpll Ham ^rl|onl ICibraty Cornell University Library KFN5787.T47 1881 Thompson's Treatise on the law of highwa npso ill 3 1924 022 869 543 The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022869543 THOMPSON'S TREATISE OSr THE LAW OF HIGHWAYS, INCLUDING WAYS, BRIDGES, TUNNELS, STRAYS, TURN- PIKES AND PLANK ROADS. WITH AN APPEN.DIX OF FORMS BY CHARLES H. MILLS, Esq., OF THE ALBANY BAR. miM Mititfn. 07 ALBANY : WEARE V. LITTLE & CO., LAW PUBLISHERS. 1881. &n/oi Entered according to Act of Congress, in the year 1881, by W. C. LITTLE & CO., In the Clerk's Office of the District Court of the United States, for the Northern District of New York. GEO. C. RIGGS, PRINTER, 461 Broadway, ALBANY, N. Y. MEMORY OF ISAAC GRANT THOMPSON, Esq., A WISE COUNSELOR, A FAITHFUL STUDENT, AND A CONSCIEN- TIOUS EDITOK, THIS EDITION IS KESPECTFULLY DEDICATED. PREFACE. I HATE attempted, in the following pages, to collect and exhibit under one view, the whole of the law relating to public ways, and to reduce into one con- tinuous system its various principles. The need of a work of the kind has long been felt, both by the mem- bers of the legal profession and by those officers to whom are intrusted the care and superintendence of highways ; and no reasonable endeavor has been spared to make this book such as would supply that need. I have given the A-arious statutes at length, in order to make the treatise in itself a practical compendium of the whole law upon the subject, and a safe guide wherever the statute book may not be accessible. With the same object I have endeavored to collect and examine all the decisions pronounced by the courts, and to so state the principles decided as to meet the requirements of the iDrofession, and to be readily understood by the non-professional reader. I take pleasure in acknowledging my indebtedness t(> Chauncet a. Deyoe, Esq., for copying a large portion of the statutes printed in this work, and I trust that his ability, integrity and industry may bring to him that success in the profession which he so justly merits. I. G. T. Tkoy, February, 1868. PREFACE TO THIRD EDITION. The law of highways, depending as it does rather Tipon the statutes than adjudicated cases, is constantly changing, and it is only by keeping pace with the numerous acts and amendments, as they appear from year to year that the lawyer can feel at aU safe in the proceedings arising from time to time in this branch of his profession. This is more especially true in regard to the Highway Commissioner or Overseer, who, fresh from business or rural employment, enters into the discharge of intri- cate duties made doubly onerous by crude legislation. To furnish a safe guide for the inexperienced official, as well as the lawyer, was the original design of this treatise, and the writer has endeavored to carry out that design in this edition, which brings the work for- ward to the present time. Wherever legislation has modified the statutes, the original law is presented, as amended, together with all new acts down to and including the Laws of 1880. The decisions of the courts, including 79 N. Y. R., 21 Hun and cotemporaneous reports, will be found in the proper connection. .All the authorities have been verified and vsdll, it is believed, be found correct. In the hope that the result of his labors may prove useful and satisfactory to those seeking knowledge in this direction, the editor presents to the profession and the public a new and revised edition of Thompson on Highways. CHARLES H. MILLS. Albany, March 1, 1881. 1 CONTENTS. CHAPTER I. PAGE. Definition, and different kinds of Highways 1 CHAPTER II. Concerning the Pee in Highways 25 CHAPEER III. Highways by Dedication 53 CHAPTER IV. Commissioners, their Powers and Duties 70 CHAPTER V. Overseers, their Powers and Duties 154 CHAPTER VI. Assessment of Highway Labor 172 CHAPTER VII. Performance of Highway Labor 188 CHAPTER VIII. Laying out Highways 214 CHAPTER IX. Altering and Discontinuing Highways 253 CHAPTER X. Assessment of Damages on Laying out Road 266 CHAPTER XI. Appbal from the Commissioners 285 CHAPTER XII. Obstructions and Encroachments 313 CHAPTER XIII. Bridges 350 Vm CONTENTS. CHAPTER XIV. Railroads in Highways and Strrkts 390 CHAPTER XV. Sidewalks 420 CHAPTER XVI. Travbl upon Highways 433 CHAPTER XVII. Cattle in Highways 447 CHAPTER XVIII. Ways and Private Roads 469 CHAPTER XIX. Plank Roads and Turnpikes 487 APPENDIX. Appendix or Forms 578 INDEX. TABLE OF CASES. A PAGES. Adams v. Emerson, 36 V. Popham, 319 ■V. Elvers, 28 V. Van Alstyne, 126 V. "Wash. & S. R. R. Co. 7, 68, 408 Adolph V. C. P. N. & E. R. R. 417, 487 Adsit V. Brady, 86 Albany N. R. R. v. Brownell, 150, 225, 239 V. Lansing, 272 Allen V. A. & P. Tel. Co. 316 AUyn V. Com. of Schodack, 308 Altrenter v. H. R. R. R. Co. 437 Amsbey v. Hinds, 247, 262, 328 Anderson v. Van Tassel, 160, 205 Armine v. Spencer, 75 Ashton v. Heaven, 439 Atkins V. Boardman, 472 Auburn, &c. P. R. v. Douglass, 554 Augustine v. Brett, 41 B Babcock v. Lamb, 31, 106 Bacon v. City of Boston, 426 Bakeman V. Talbot, 474, 476 Baker v. Johnson, 4 Baldwin v. City of Buffalo, 273 Ball V. Herbert, 18 Ballard v. Dyson, 2, 474 Bank of Ithaca v. King, 174 Barker v. H. R. E. E. Co. 437 ' Barker v. Loomis, 139, 161 Bartlett v. Crozier, 78, 83, 158, 168 PAGES. Barton v. Syracuse, 427 V. Pt. Jackson, 581 Bateman v. Black, , 4 Baxter v. Warner, 349 V. S. & S. E. E. Co. 395 Beach v. Furman, 173, 196 Beandely v. Brook, 475 Beck V. Carter, 29, 65, 320 Beckwith v. Whalen, 247 BenedicI, v. Goit, 7, 205, 524 Bissell V. N. Y. C. E. E. 27, 39, 40, 64, 475 Birdsall v. Phillips, 308 Blake v. Ferris, 91 Blakely v. City of Troy, 89 Bliss V. Johnson, 40 Bloodgood V. M. & H. R. R. 267 Bolton V. Golden, 439 Boots V. Washburn, 106, 139, 360 Borries v. Horton, 827 Bostwick V. Barlow, 78, 85 Boss V. Litton, 441 Bonghton v. Carter, 532 Bouton V. Neilson, 106, 139, 360 Brower v. Burlew, 448 Boyce v. Brown, 469, 480 Brace v. N. Y. C. R R. 7, 415 Bradley v. Blair, 93, 242, 341 V. Buflf. & E. R. E. 415 Brady v. City of Lowell, 426 Braden v. Berry, 636 Bridge Co. v. Bachman, 31, 63 Bridge T. Co. v. Stower, 87 V. Grand June. R. R. 349 TABLE OF CASES. PAGES. Briggs V. Bowen, 311 Bronk v. Becker, 125 Broisted v. South Side R. R. 399 Brooklyn Cen. R. R. v. B. City R. R. 417 Brooks V. N. Y. & E. R. R. 416 Brooks V. Hart, 436 Brown v. Cayuga R. R. 344, 410 Browne v. Chadborne, 20 Bruni, Matter of 309 Brnyn v. Graham, 303 Buffalo V. Holloway, 91 BuUard v. Harrison, 3, 480 Bormiester, matter of 8, 452 Burnham v. Hotchkiss, 343 Bntler v. Kent, 346 Butternuts T. Go. v. North, 491 Byrnes v. City of Cohoes, 90 Calkins v. Bloomfleld Gas Co. 26 Campbell v. Evens, 449, 452 Canal Appraiser v. People, 18, 23, 50 Canal Com. v. People, 18, 35, 47 Canastota & M. R. R. v. Parkill, 554 Carrier v. Schoharie T. P. Co. 554 Carris v. Com. of Waterloo, 105, 223 Carpenter v. Gwynn, 61 v. Oswego & Syra- cuse R. R. 25, 34, 399 Cartwright v. Mablesden, 473 Case V. Thompson, 246, 305 Central Park, Matter of 271 Center v. Finney, 439 Central Park, Matter of 439 Charaberlin v. Reed, 124 Chambers v. Furry, 6, 16 Chapman v. A. & S. B. R. 8, 410 v. Gates, 268, 328 Chapman V. Swann, Chess V. Manown, Chestney v. Coon, Chicago V. Robins, Chichester v. Lethbridge, PAGES. 61 17 549 427 472 Child V. Chappell, 53, 64 V. Starr, 40, 43, 50 Christman v. Paul, 86 Christy v. Newton, 217 City of Providence v. Clapp, 426, 429 Clark V. Brown, 129 V. City of Lockport, 88 V. Miller, 277, 283 V. Rugge, 477 V. Phelps, 104, 223, 287, 303 Clapper, Ex parte, 225, 308 Clemence v. Auburn, 427, 432 Clements v. West Troy, 37, 64, 475 Cleveland v. Cleveland, 3, 54 Clow V. Van Loan, 550 Colden v. Thurber, 59, 82 Cole V. Trustees Medina, 428 Coles V. Burns. 140 Colten V. Maurer, 412, 415 Commonwealth v. Passmore, 38, 315 V. Wilkinson, 9 Commissioners v. Kempshall, 18, 23, 43, 49 V. Meserole, 238, 243, 300 Com. of Carmel v. Judges Put- nam, 231 Com. of Cortlandville v. Peck, 141 Com. of Danube, Ex parte, 301 Com. of Kinderhook V. Caw, 309 Com. of N. Hampsted v. Judges Queens Co. 81 Com. of Sherburne v. Judges Sherburne, 30 Com. of Warwick v. Judges ■TABLE OF CASES. XI PAGES. Orange, -296, 304, 308 Ooney Island E. "R , Matter of, 395 "Conklln v. Etting, 555 V. Furman, 570 V. Phoenix Mill, 23, 320 Congreve v. Smith, 29 €onrad v. Trustees Ithaca, 82, 427 Cooper V. Smfth, 617 Cook V. Covll, 327 V. Gregg, 449 V. Harris, 56, 348 Cornell v. Butternut T. Co. 13«, 339, §23 Corning v. Gould, 262, 471 Corwin v. N Y. & E. R. R. 415 Cotterill v. Starkey, 441 Coutant V. Catlin, 268, 271 Cowles V. Balzar, 129 Coykendall v. Durkee, 161, 339,287 Craig V. Rochester R. E. 399, 401 Crawford v. N. Y. C. R. R. 412, 415 Cummings v. Waring, 547 Curtis V. Keester, 20, 473 D DansvlUe P. R. Co. v. Hull, 554 Davenport v. Lambert, ■53, 65, 82, 340 Davenport v. Ruckman, 4-27 Davis V. Mann, 349 Davis V. Mayor Hew York, 143, 409 Day V. Day, 344 Dempsey v. (Kiipp, 479 Deming v. Rooroe, 59, 342 Department of Parks, 271 Derreckson v. Springer, 470 DeWitt V. Village of Ithaca, 59 Dexter v. Broat, 524, 532 Dexter P. E. Co. v. Allen, 550 Diez V. Lamb, 29 Disosway v. Winauts, 290, 306, 310 PAGES. Ditchett v. S. D. & P. M. R. R. 416 iDiveny v. Blmira, 427 ©odd v.Burchell, 477 Dolan V. Delaware & H. R. R. 419 Donnelly V. Townof Ossinlng, 351 Dougherty v. Bunting, 346, 348 Dovaston v. Payne, 31 Downing v. Ruger, 303 Drake v. City of Lowell, 426 V. H. R. E. E. 8 V. Eogers, 305, 328 Drinkwater v. Dinsmore, 349 Dudley v. BoUes, 439 Dunham v. Williams, 575 Duntz V. Duntz, 140 Durgin v. Lowell, 61 Dutchess, &c. E. E. v. Mabbett, 490 Dyer v. Erie E. R, Co. 419 Dygert v. Schenck, 11, 29, 67, 92, 320, 339, 349, 354, 419 E Earing v. Lansing, 433 Eastern P. Co. v. Vaughan, 490 Eggleston v. Columbia T. Co. 320 Ellicottville P. R. Buffalo E. E. 403 Elmendorf v. City of Albany, 420 Ernst v. H. E. R. E. 419 Estes V. Kelsey, 9, 557, 575 Etz V. Daily, 40 Evans v. City of Utica, 432 E Fairfield v. Williams, 27 Fawcett v. Y. & M. R. R. 416 Fettrich v. Dickenson, 417 First Baptist Church v. Sche- nectady R. '^. 347 First Baptist Church v. Utica E. E. 347 xu TABLE OP CASES. PAGES. Fish V. Mayor of Rochester, 203, 206 Fisher v. City of Kochcster, 203, 225 Fishkill V. Fishkill P. E. Co. 525 Fitch V. Com. of Kirkland, 106, 135, 156, 215, 255, 326 Fitz Water St., Matter of 7 Fletcher v. Auburn & S. R. R. 34, 143, 395, 409 Foot V. Stiles, 75, 103 Fort Edward P. R. v. Payne, 9, 491 Fort Plain Bridge Co. v. Smith, 374, 382, 388 Fowler v. Lansing, 340 V. Mott, 6, 17 V. Wester velt, 170 Fox V. Dunckel, 449 Freeholders of Cattaraugus Co. Matter of 370 Freeman v. Cornwall, 196 French v. Campbell, 22 Fuller V. PuUerton, 75 Furman Street, Matter of 2, 71 Q Gale V. N. Y. C. R. R. 419 Gardner V. Com. of Warren, 309 Garretson v. Clark, 254 Garrison v. Rudd, 470 Garliaghouse v. Jacobs, 85, 149, 161, 353 Gidney v. Earl, 27, 469 Goodtittle v. Alker, 28 Gould V. Booth, 206, 349 V. Glass, 56, 138, 216, 253 V. Hudson R. R. 17, 410 Governor, &c. v. Meredith, 208 Grant v. City of Brooklyn, 441 Graves v. Otis, 205 Greene v. Danby, 429 Griffin v. Martin, 32 PAGES. Griffith V. McCuUum, 340, 34» Gross v. West 27 Grube, Matter of 425. H Hallock V. Woolsey, 217, 229, 273, 301 Halsey v. McCormack, 44, 45- Ham V. Silvernail, 229 Hamilton Ave., Matter of 270 Hamilton & P. R. v. Rice, 489' Hamilton v. White, 473 Hammond v. McLachlin, 41 Hammondsport v. Brundage, 535- Hance v. Cayuga R. R, 414 Hardenburgh v. Lockvrood, 82' Harlow v. Humiston, 3, 29, 244, 319' Harpell v. Curtis, 440. Harrington v. People, 105, 216, 291 Harris v. Houck, 139, 364 V. Whitney, SOS narrower v. Ritson, 343 Hart V. City of Brooklyn, 42» V. Mayor of Albany, 21, 342' V. Mayor of Albany, 313, 323 Haswell v. Mt. Cen. R. R. 36 Hartfleld v. Roper, 442 Hayes v. N. Y. C. & H. R. R. 92- Haywood v. Wheeler, 122, 156- Heacock v. Sherman, 11, 12, 92: Heath v. Burman, 675- Hegan v. Eighth Ave. Co. 417 Henderson v. N. Y. C. R. R. 408 Herrick v. Stover, 48S Herring v. Fisher, 41 Herrington v. Corning, 42& Heywood v. Mayor New York, 37 Hickox v. Thurston, 456; v. Trustees Ptattsburgh, 5, 8a Hicks V. Chafee, 353 Higgius V. Reynolds, 24- TABLE OF CASES. XIU PAGES. Hill V. Supervisors Dutchess, 14 V. Supervisors Livingston, 350, 360 Hines v. City of Lockport, 88, 427 Holdane v. Trustees, &c. 62, 65, 68 Holiday v. Marsh, 33 Holmes v. Seeley, 443, 472, 477 Hooker v. Cummings, 18, 47 Hooker v. Utica T. Co. 36, 575 Hoole V. Attorney General, 68 Hopkins v. Crombie, 343 Hopper V. Bowe, 440 Hover v. Barkhoof, 85, 353 Hume V. Mayor, 89, 321, 425 H. E. Bridge Co. v. Patterson, 371 Hutson v: Mayor New York, 427 Hunter v. Trustees, . 53, 65, 67 Hyatt V. Bates, 150 Hyatt V. Trustees, 83, 88, 160, 428 lUige V. Goodwin, 440 In re Bumiester, 8,425 Bruni, 309 Central Park, 371 Coney Island R. R. 396 Eitz "Water St. 7 Furman St. 271 Grube, 426 Hamilton Ave. 270 Irondequoit, 370 Lewiston, 542 Mayor of Albany, 310 N. Y. C. R. R. 36 Petition of N. Y. C. R. R. 396 Petition of Freeholders of Cattaraugus Co. 320 P. P. &c. E. R. 241, 400 Rhinelander, 29, 32, 60 Twenty-ninth St. 59 Thirty-second St. 59 William & Anthony Sts. 270 PAGES. Ireland v. Oswego P. R. Co. 10, 84, 160, 624 Irondeqnoit, Matter of 370 Irvine v. Wood, 320- Irwin V. Dixon, 67 Jackson v. Hathaway, 26, 40, 263 V. Louw, 44 Jaquith v. Richardson, 416 Jamaica Pond v. Chandler, 469 Jansen v. Ostrander, 75 Johnston v. Supervisors Herki- mer, 267 Jones V. City of TJtica, 93, 342 V. Cowman, 41 V. Seligman, 241, 408 Jordan P. R. Co. v. Morley, 552 Judges Oneida v. People, 147 K Kane V. People, " 371 Kecler v. Frost, 303 Kelley v. Horton, 246, 305 V. Mayor Kew York, 90 Kellinger v. 42d R. B. 397 Kellogg V. Thompson, 206 Kelsey v. King, 7, 54, 67 Kenyon v. Seeley, 548 King v. Inh. Glamorganshire, 13 Kingman v. Sparrow, 45 Kingston Mut. Ins. v. Clark, 76 Knox V. Mayor of New York, 319 Koch V. Village of Bdgewater, 427 Lade v. Shephard, 33, 67, 63 Lambert v. Hoke, 485 Lane v. Cary, 330 Lansing v. Caswell, 105, 221, 294 V. Smith, 320, 346 v. Wiswall, 471 XIV TAELE OF CASES. PAGES. Lapham v. Rice, 364 Lawrence v. New York, 8 Lawton v. Com'rs, 235, 298 Leavitt v. Thompson, 451, 459 Ledyard v. Ten Eyck, 23 Leigh V. Westervelt, 321 Lethbridge v. Winter, 61 Lewiston, Matter of 542 Little V. Denn, 329 Locker v. Brookline, 429 LoriUard v. Town of Monroe, 87 Lozier v. N. Y. C. E. R. 399, 408 Luce V. Corley, 44 Lyman v. Arnold, 474 Lynch v. Nurdin, 442 M Macedon P. R. Co. v. Lapham, 560 Mahon v. N. Y. C. R. R. 10, 34, 395, 399, 403, 557 Mallory v. Austin, 548 MarceUis v. Leaman, 543, 553 Marble v. Whitney, 104, 107, 156, 216, 219, 247, 257 Marvin v. Pardee, 328 Mather v. Crawford, 139, 354 Mayor of Albany, Ex parte, 310 Mayor of Rochester v. Curtiss, 21 McAllister v. Albion P. R. Co. 541, 548 McCamus v. Citizens' Gas Light Co. 321 McCarthy v. L. S. & M. S. R. R. Co. 62 McCarthy v. Syracuse, 340, 345 V. Whalen, 216, 221 McConnell v. Van Aernam, 449 McDermottv. Board of Police, 325 V. City of Kingston, 89 McDonald v. Lindall, 477 McDowall V. N. Y. C. R. R. 417 McFadden v. Kingsbury, 79, 159 PAGES. McGinty v. Mayor, &c. 427 McMahon v. 2d Ave. R. R. 138, 403, 412 McManus v. Butler, 57, 60 Milhau V. Sharp, 7, 26, 33, 68, 409 Miller V. Brown, 107, 215 Miller V. Garlock, 214, 261, 471, 473 Miles V. Hall, 345 Mohawk R. R. v. Artcher, 223, 480 Monterey P. R. Co. v. Cham- berlain, 551, 557 Moore v. Jackson, 324 Moran v. McClearns, 206 Morey v. Town of Newfane, 87 Morgan v. King, 18, 20, 45, 51, Moshier v. Utlca R. R. 412 Mott V. Coni, of Rush, 310, 327, 351 V. New York, 39 Moule V. M. & B. P. R. 540 Munn V. Worall, 40 Munson v. Hungerford, 20 Myers v Malcolm, 346 N Northern Turnpike v. Smith, 146, 525 Northrop v. Burrows, 146 N. Y. C. V. 42d and Grand St. R. R. 35, 403 N. Y. C, Matter of 35 N. Y. Life Ins. Co. v. Milner, 478 Noyes v. Chapin, 228 O Odell V. DeWitt, 78, 250 Osbom V. Union Ferry Co. 319 Oswego V. Oswego Canal Co. 64, 65 Overseers Pittstown v. Over- seers Plattsburgh, 137 TABLE OF OASES. XV P PAGES. Pack V. Mayor New York, 90 Palmer v. Fort Plain P. R. 142, 146, 525 V. Mulligan, 21, 40 V. Vandendurgh, 139 Parker v. "Van Houton, 219, 329 Patchin v. Mayor of Brooklyn, 310 Pearsall v. Post, 6 Peck V. Smith, 39 V. Village of Batavia, 428 People v. Adslt, 86,161,345,353 V. Albright, 103, 228, V. Barber, 301 V. Baker, 289, 300 ,v. Barker, 174 V. Branchport P. R. 345, 375 V. Burton, 290, 296 V. Canal Appraisers, 18, 50, 62 V. Champion, .148, 150, 287, 301 V. Cline, 2S1, 297 V. City of Brooklyn, 403 V. Collins, 146, 148 V. Comr's of Greenbnrgh, 223, 287 V. Com'rs of Greenbnsh, 108, 259 V. Com'rs of Highways, 149, 289, 800 V. Com'rs of Hudson, 355 V. Com'rs of Plainfleld, 302 V. Com'rs of Reading, 263 V. Com'rs of Red Hook, 218, 236 V. Com'rs of Salem, 146, 218, 235, 310 y. Com'rs of Seward, 149, 228, 259, 308 V. Com'rs of Westches- ter, 274 PAGES. People V. Connor, 269, 294 V. Contracting Board, 147 V. Cortelyou, 286, 297, 332 V. Crozier, 293 V. Cunningham, 38, 313, 317, 345 V. Diver et al, 302 V. Eggleston, 104, 107, 216, 254 V. Ferris, 295, 303 V. Finger, 148 V. Flagg, 120 V. Flake, 290 V. Fishkill, &c. P. E. Co. 525, 530 V. Fredericks, 180 V. Freeman, 558 V. Goodwin, 103, 221, 296, 308, 311 V. Goshen, &c. Turnpike Co. 533 V. Griswold, 256, 263 V. Hall, 182 V. Harris, 295, 299 V. Heath, 312 V. Horton, 223, 314 V. Hynds, 106, 215, 228, 233, 254, 259, 330 ■V. James, 8 V. Jones, 260, 305 V. Judges of Cortland Co. 80, 248, 253, 307 V. Judges of Dutchess , Co. 105, 222, 229, 309 V. Judges of Herkimer Co. 292 V. Judges of Suffolk Co. 299, 307 V.Kelly, 310 V. Kerr, 7, 11, 26, 33, 68 397,'408 V. Kingman, 105, 210, 225 XVI TABLE OF CASES. PAGES. People V. Kniskern, 290, 304 V. Lambier, 6 V. Lawrence, 276 V. Lewis, 277, 280, 283 V. May, 287 V. McDonald, 245, 284 V. McNiel, 253 V. Mott, 284 V. Meach, 354 V. Nelson, 307 V. Nicholas, 261 V. N. Y. C. R. E. 240, 404, 412, V. New York City, 181 V. Osborne, 234 V. Pierce, 179 V. Pike, 109, 261, 305 V. Piatt, 46 V. R. & S. L. R. R. Co. 409 V. Robertson, 107, 257, 293 V. Robinson, 312 V. Sandman, 73 V. Schell, 287 V. Scott, 103, 214 V. Sherman, 299, 303, 312 V. Sly, 93, 264 V. Supervisors Allegany, 235 V. Supervisors of Co- lumbia, 282 V. Supervisors of Dutch- ess, 360 V. Supervisors of Nia- gara, 180 V. Supervisors of Orange, 306 V. Supervisors of Queens, 120 V. Supervisors of Rich- mond, 74, 104, 216 PAGES. People V. Supervisors of Ulster, 279, 283 V. Tallman, 280, 292 V.Taylor, 147,- 479, 481 V. Third Ave. R. E. 409 V. Tibbitts, 50 V. Town Auditors of Little Valley, 85, 353 V. Town Auditors of Esopus, 87, 142, 169 V. Town of Milton, 217 V. Van Alstyne, 296, 308, 311 V. Vauderbilt, 324 V. Van Home, 74 V. Van Keuren, 87 V. Village of Batavia, 34, 428 V. Wallace, 309 V. White, 36, 37, 283, 525 V. Williams, 93, 135 Perkins v. Perkins, 125 Perly v. Chandler, 29 Pet. of N. Y. 0. R. R., In Ee, 396 Pet. of Freeholders of Cat. Co. 320 Pierce v. Dart, 347 Pipkin V. Wynns, 17 Plant V. L. I. R. R. 8; 410 Plummer v. Sturtevant 207 Pope V. O'Hara, 476 Post V. Pearsall, 54, 55 Potter V. Bemiss, 196 Potter V. Davis, 139 P. P. & C. I. E. E., Matter of 241, 400 Pratt V. Buffalo E. E. 69, 399 V. People, 215, 218, 236 Presbyterian Society v. Auburn, 10, 34, 396, 408 Prime v. 23d St. E. R. 408, 432 Prindle v. Anderson, 808 Pngsley v. Anderson, 330 TABLE OP CASES. XTU Q PAGES. Quinlan v. City of Utica, 427 R Rector Vi Clark, 289, 299 Regina v. Patrie, . 58 V. Saintiff, 6 Rensselaer, &c. P. R. Co. v. Barton, 492 Renwick v. Morris, 321 Requa v. City of Rochester, 12, 89 Kexv. Barr, 54 V. Carlisle, 318 V. County of Salop, 2, 15 V. Cross, 316 V. Hudson, 58 V. Inh. of Devon, 14 V. Inh. of Kent, 13, 14 V. Inh. of Northampton, 14 V. Janes, 317 V. Lloyd, 57 V. Lyon, 2 V. Russell, 316 V. Severn Railway Co. 10 V. Stoughton, 344 V. The West Riding of Yorkshire, 12, 14, 67 Rexford v. Knight, 23 Rhinelander, In re, 29, 33, 60 Rice v. Milks, 196 Rinehart v. Young, 165 Ring V. City of Cohoes, 428 Robbins v. Borman, 36 Roberts v. Karr, 61 Robinson V. Chamberlain, 23 V. Cone, 442 V. N. Y. & Erie R. R. Co. 395, 410 Rochester v. Montgomery, 91 Rochester White Lead Co. v. Rochester, 89,209,427 Rockwell v. Hearing, 447, 449 Jlogers V. Bradshaw, 315, 575 PAGES. Rogers v. Runyan, 296, 303 JRome & Oswego Road Co. v. Stone, 375, 550 Rose V. Miles, 348 Rugby Charity v. Merry weather, 4, 5, 58 S Sager v. Barnes, 328 Seneca Falls v. Zalinski, 91 Seneca Nation v. Knight, 44 Seneca Road Co. v. Auburn. R. R. 403, 557 Sewell v. City of Cohoes, 8, 88, 90 Sexton V. Zett, 425, 427 Shaw V. Crawford, 20, 21, 46 Shea V. 6th Ave. 442, Shepard v. Bull, 415 V. Watson, 475 Sherman v. Cortright, 205 Silver v. Cummings, 139 Simmons v. Stellemnerf, 436 Sipperly v. Troy & Boston B. R. 413 Sixth Ave. R. R. v. Kerr, 11 Sizer v. Devereux, 41 Smiles v. Hastings, 423, 475 Smith V. Dygert, 436 V. Eerris, 267 V. Helmer, 106 V. Mayor New York, 6 V. Smith, 441 V. Wright, 86 Suyder v. Plass, 222, 245 V. Trumpbour, 222, 245 Spicer v. Slade, 326 Spinner v. N. Y. C. R R. 415 Springfield v. Conn. R. R. 10 Starr v. Child, 49 State v. Bell, SH State V. Hageman, 345 Stevens v. Whistler, 32 Stewart v. Wallis, 106, 215 XVUl TABLE OF CASES. PAGES. Stover V. Freeman, 45 Storrs V. City of Utica, 90 Story V. N. Y. Elevated R. K. Co. 397 Strong V. City of Brooklyn, 399 Stratton v. Herrick, 549 V. Hubbell, 549 St. Vincent's Orphan Asylum V. Troy, 8, 265 Supervisors of Galway v. Stimpson, 137 Susquehanna T. Co. v. People, 533 Sutton V. Clarke, 209 Suydam v. Smith, 534, 637 Sweet V. City of Troy, 272 Syracuse v. TuUy P. E. Co. 633 Syron v. Blakeman, 160 Talmadge v. Hunting, 81, 244, 327 Taylor v. Whitehead, 3, 479 Terpening v. Smith, 893 Thatcher v. Dusenbury, 151 Theall V. CityofYonkers, 364 Thirty-second St., Matter of 59 Thompson v. Allen, 210, 344 V. Matthews, 15, 371 Tifit V. Alley, 364 Todd V. Birdsall, 137 V. Todd, 106 Tompkins v. Hodgson, 8, 315 Town of FlshkUl v. Fishkill P. R. Co. 146 Town of Galen v. Clyde P. R. Co. 87 Town of Gallatin v. Loucks, 228, 259, 274, 308 Town of Pierrepont v. Love- lass, 357 Townsend v. Susquehanna T. Co. 371, 532 Tracey v. T. & B. R. R. Co. 415 FA.GSS. Troy & Boston R. R. v. Lee, 271 Trustees of Angelica v. Morse, 177 Trustees v. Otis, 64 Tucker v. Rankin, 219, 236 v. Tower, 37 Turiey v. Thomas, 437 Turner v. Williams, 271 Twenty-ninth St., Matter of 59 Tyler v. Hammond, 42 U Underwood v. Cooney, 471 Underwood v. Stuyvesant, 63 Union Burial Ground v. Robin- son, 42 Van Alstyne v. Freday, 139 Van Amringe v. Barnett, 263 Van Bergen v. Bradley, 216, 218 Van Brunt v. Ahern, 346 Van Rensselaer v. Van Alstyne, 229 Varrick v. Smith, 48 Village of Fulton v. Tucker, 425 W Wade V. Carr, 437 Wadsworth v. Smith, 22 Wager v. Troy Union R. R. Co. 10, 27, 34, 39, 395, 399, 408 Wakeman v. Robinson, 440 Walker v. Board of Public Works, 22, 35 V. Caywood, 9, 59, 245, 247, 524 V. Moseley, 195 Wallace v. Mayor of New York, 427 Ward V. A. & P. Tel. Co. 316 V. Davis, 54 Warner v. N. Y. C. R. R. 419 TABLE O^ CASES. XIX PAGES. Washbnrne v. Tracey, 438 Wash. Cem. v. P. P. & C. I. R. R. 27 Waterford, &c. Turnpike Co. V. People, 533 Watkins v. Atlantic Ave, R. R. Co. 446 Watrous v. Southwick, 39 Webb V. Albertson, 142 Webber v. Eastern R. R. 40 Weed V. Village of Ballstou, 319, 348 Weet V. Trustees of Brockport, 88, 209, 427 Welling V. Judge, 437 Welsh V. Lawrence, 441 Wendell v. Mayor of Troy, 30, 88, 160 West V. McGurn, 484 Wetmore v. Atlantic White Lead Co. 23, 324 V. Tracey, 325, 340 Whalen v. Gloucester, 428 Whitaker v. Eighth Ave. R. R. Co. 446 Whitbeck v. Cook, 27 White V. Cincinnati, 7, 33 V. Scott, 32 Wiggins V. Tallmadge, 5, 60, 82 Wilbrand v. Eighth Ave. R. R. PAGES. Co. 41T William & Anthony Sts. , In re, 270' Williams v. Kenny, 30 V. N. Y. C. R. R. Co. 10, 34, 69, 144, 395 V. People, 218 V. Safford. 3, 443, 476, 480. Willoughby v. Jenks, 27 Wilson V. City of Watertown, 88 V. Mayor of New York, 86, 209, 353 , V. Susquehanna Turn- pike Co. 532 Wohler v. Buffalo & S. L. R. R. Co. 63 Wolf V. Beard, 441 Woodv. Cityof Williamsburgh,27 V. "Veal, 4, 54 Woodyear v. Hadden, 4, 57 Woolsey v. Tompkins, 235, 301 Worcester V. Western R. R. Co. 36 Worster v. Forty-second St. R. R. Co. 412 Wright V. Saunders, 320 Wyman v. Mayor of New York, 59 Wynkoop v. Burger, 476- Yeates v. Hathaway, 40 THE LAW OF HIGHWAYS. CHAPTER I. DEFIN'ITION AND DIFFEEENT KINDS OF HIGHWAYS. 1. Definition. 6. Railroads. 2. Extra Viam. 7. Bridges. 3. Cul de Sac. 8. Ferries. i. Streets. 9. Navigable Rivers 5. Turnpike and Flank Roads. 10. Canals. I. Definition. A highway is a way over which the public at large have a right of passage, whether it be a carriage way, a horse way, a foot way, or a navigable river. (3 Kent, 432.) It was considered formerly that no way which did not lead to a market town was a highway ; but it is now well settled that any way common to all people, without distinction, is a highway. (1 Hawk., c. 76, § 1 ; Weltbeloved on Highways ; Brandos Diet., tit. " Roads ;" People v. Kingman, 24 N. T. R. 559.) It was said by Lord Coke that there are three kinds of ways : a foot way ; a pack and prime way, which is both a foot way and horse way ; and a cart way, which includes the other two. {CoTce Lilt., 56 a.) But not- withstanding these distinctions, it is well established that any of the said ways which is common to all per sons, may properly be called a highway. {Egremont on Highways, 2.) 2 2 THE LAW OF HIGHWAYS. " There is no doubt," says Lord EUenborough, " that a public foot way, or bridle way, is a highway ; it is a highway for foot passengers, or for horse passengers ; and the parish is bound to repair it, till they can tlirow the onus upon others. So all public bridges are prima facie repairable by the inhabitants of tht^ county, with- out distinction of foot, horse, or carriage bridges, unless they can show that others are bound to repair particular bridges. {Rex. v. County of Salop., 13 Bast. 95.) The size of the way is not material. A right of way for all persons to pass and repass with their carts and carriages, is not restrained because all carriages cannot pass and repass. {Hex. v. Lyon, 5 Dow. and M. 497.) There is also at common law, a way termed a drift- way, or a way over which cattle are driven ; but this is also included in the generic term "highway;" for Lord Mansfield has laid it down that in general a pub- lic highway is open to cattle, though it may be so unfrequented that no one has ever seen an instance of their going there ; the presumption is for cattle as wt-ll as carriages; otherwise cattle could nor be driven from one part of the country to another. {Ballard v. Dy- son, 1 Taunt., 285.) 2. Extra Viam. If passengers have used time out of mind, when the roads are bad, to go by outlets on the land adjoining a highway in an open field, such outlets are parcel of the highway ; and therefore if they be sown with corn, and the tracts f oundrous, the public may go upon the corn, for highways are for the public service, and if the usual tract is impassable, the people are entitled to pass on another line. (1 Roll. Abr. 390 ; 2 Doug. 748 ; 1 Bawk. P. a, ch. 76, § 2.) DIFFERENT KINDS OF HIGHWAYS. 6 So, if a highway be impassable or foundrous, or even dangerous to be traveled over, or incommodious from being out of repair, or from other causes, the public have a right to a new way for the time beina, and for this purpose, may go on the adjoining land ; and it makes no difference whether it be sown with grain or not. And if the adjoining lands be inclosed, the trav- eller may remove so nrnch of the fence as will enable him to pass around the obstruction ; but he must do -no unnecessa.ry injury. ( Williams v. Safford, 1 Barb. 309 ; Sir W. Jones, 296 ; 2 Show, 28.) But this priv- ilege of going over adjoining lands if the way be impassable or foundrous is confined to highways ; and the grantee of a private way cannot take advantage of any such liberty. {Taylor v. Whitehead, Doug. 745 ; BuUard v. Harrison, 4 M. & 8. 387.) Land adjoining a public highway, remaining" unenclosed, is considered as dedicated to public use, and no action will lie by the owner against any person travelling over it. {Cleve- land V. Cleveland, 12 Wend. 172.) But in an earlier case in the same court, it was held that all the land within a highway fence was not necessarily subject to the right of way ; and if not, may be occupied by the owner. And if he place an obstruction there and an- other be injured by it, he is not therefore liable. {Harlow v. Humiston, 6 Cow. 189.) 3. CuL De Sac. It has been a subject of much doubt in the English courts, whether there could be a highway where there was no thoroughfare, or passage through — that is whether a road or street which is closed at one end, aud communicates with a public highway or navigable river at the other, could be a highway. Such a pas- 4 THE LAW PP HIGHWAYS. sage is called a cul de sac. Lord Kenyon, in the case of The Rugby Charity v. Merryweather (11 East. 375 n.\ decided that it made no difference whether or not a street was a thoroughfare ; that there mightbe a high- way where there was a cul de sac ; and that it was a question for a jury on evidence, whether there was a public highway or not. Although there appear to be no decisions expressly overruling this case, yet it was afterwards doubted by Lord Mansfield in Woody er v. Sadden, (5 Tauni. 12^,) and by Justices Abbott, HoLKOYD and Best, in Wood v. Yeal, (5 Barn. & Aid. 454). Mr. Wellbeloved, also, in his treatise on high- ways, after an examination of tlie above cases, lays it down, " that there can be no highway where there is no thoroughfare." {Wellb. on Highways, 1.) But the more recent English decisions are adverse to this proposition, and sustain the decision of Lord Kenyon. In the case of Bateman v. Black. (14 Eng. Law & Eq. 69,) which came before the Court of Queen's Betich in 1852, the question was directly in issue, and Lord Campbell announced his opinion as follows : " We must take it that there is a good finding on this issue, unless there cannot, in point of law, be a good high- way where there is no thoroughfare. Now such a position cannot, I think, be supported. There may be, or there may not be, a highway under such circum- stances. It would be very strong to hold that there could be no highway — even where there has been an express dedication to a public purpose — because the place is no thoroughfare. There may be a large square with only one entrance to it, and if the owner allows the public to use it without restriction for a great many years, he cannot afterwards turn round and say they are all trespassers. That would be, as said by Lord Kenyon, a trap to catch trespassers. In the Rughy DIFFEKENT KINDS OF HIGHWAYS. 5 CJiarity v. Merryweather, Lord Kenyon laid it down that there might be a public highway where there was a cul de sac ; and that it was a question for a jury, . on evidence, whether such a place was a highway or not. I dfc not find that this case has ever been expressly overruled. In the other cases referred to, the judges do not hold that such highway does not exist, but only say that there is no evidence of there being a highway. It seems to me that it rests on principles of conve- nience, that there may be a highway without a thor- oughfare ; and it is not inconsistent with what is laid down by Hawkins and other text writers on the sub- ject." This was concurred in by all the judges in that case. The opinion of Eaele J. was in brief, as fol- lows : " The-'question is whether there can be in law a highway where no thoroughfare exists. It seems to me clear from the authorities that there can be such a highway, and convenience requires that this should be so. It is for the jury to consider whether on the whole of the facts proved they will presume a dedication to the public." In this State it may be regarded as settled that, both at common law and under the statute, a cul de sac inay be a highway. . {People v. Kingman, 24 N. T.R. 559 ; Wiggins v. Tallmadge, 11 Barb. 457'; HicTcok v. ■ Trustees of Plattsburgh, 41, Barb. 135. ) But whether it is a highway, or a private passage, depends on the user or dedication, and is to be decided by the jury; Where a highway terminates at one extremity in a navigable river, it is not, in any sense of the term, a cul de sac, since it connects the right of passage on the land with a like right on the water ; and any change in the line of the shore, either from natural or artificial causes, cannot affect the right of way to the river. If, therefore, the owner of the adjoining land. 6 THE LAW OF HIGHWAYS. under authority from the Legislature, builds a bulk- head in front of his land and the street, and fills up the intermediate space, the highway is not thereby cut off" from the river, but is extended by operation of law, over such new made land to the water. {People v. LnmMer, 5 Denio 9 ; Smith v. Mayor New YorJc, 68 N. T. R. 552.) Where a highway extends to navigable waters, it cannot be used as a place of deposit by the public ; and it was even held by Mr. Justice Cowen, in a most elaborate opinion that, "the landing of wagons, horses and passengers on the shores of a river, a sea or an ocean, even though it be upon a dedicated or recorded highway, on the land connected with the watery way, for the direct purpose of going onward, is still a tres- pass on the riparian owner, unless we could suppose such acts to be performed without any contact between the vessel and the shore." {Pearsallv. Post, 20 Wend. 131 ; see also Chambers v. Furry, 1 Yeates, {Penn.) 167; Cooper v. Smith, Q S. & Bawle, 26.) But this dictum of the learned judge has been overruled by more recent decisions, and the right of the public to land in such cases, established. {Fowler v. Mott, 19 Barb. 204.) The same principle is laid down also by the English writers ; for with regard to a ferry it is stated, that a ferry is as much a highway as a bridge ; and that, therefore, the public have a right to embark and disembark at the landing places, provided such landing places be a highway. ( Wellb. on Highways, 35 ; Peters v. Kendal, 5 B. & Cress. 703.) 4. Streets. The word " highway " is said to be the genus of all public ways {Regina v. Saintiff, 6 Mod. 255), and in- DIFFEKENT KIWDS OF HIGHWAYS. 7 eludes the streets of a city or village. {Benedict v. OoU, 3 Barb. 459 ; Adams v. Wash. & Sar. R. B. Oo., 11 Barb. 449 ; Tn re Fitz- Water street, A 8. & Bawle, 106 ; Brace v. N. Y. Central R. R. Go., 27 N. T. R. 271.) Nevertheless there is a wide distinction between a highway in the country and a street in a populous city, as regards the mode and extent of their enjoy- ment. The reason for the restricted use of highways in the country is that they are needed for no other pur- pose, than for passing and repassing ; but such is not the case with the streets of a city. There are certain uses — such as the construction of sewers, and the lay- ing of water and gas pipes — to which, in modern times, , such streets have generally been applies d These urban servitudes, as they are called, are the necessary inci- dents of a street in a large city ; and whether the street be laid out and opened upon property belonging to the corporation, or whether they become public streets by dedication or by grant, or upon compensation being made to the owner of the fee, they have all the inci- dents attached to them, which are necessary to their full enjoyment as streets. And whether the corpora- tion be the owner of the fee of the streets, in trust for the public, or whether it be merely the trustees of the streets and highways as such, irrespective of any title to the soil, it has the power to authorize their appro- priation to all such uses as are conducive to the public good, and do not interfere with their complete and un- restricted use as Ijighways. {Milhau v. Sharp, 15 Barb. 210; People v. Kerr, 27 JV. Y. R., 202; White V. Cincinnati, 6 Peters, 432 ; Kelsey v. King, 32 Barb. 410.) This doctrine, so far as it applies to highways acquired by dedication, was, however, doubted by Davis, C. J., in Kelsey v. King, 33 How. 39. With regard to the streets in the city of New York, it is held 8 THE LAW OF IIIGIIWAYS. that the fee in the soil of all such as are opened un,der the provisions of the acts of 1807 and 1813, rests in the corporation for public use. {Hoff. Treatise, 289 \ Peo- ple V. Kerr, 27 N. T. B., 188 ; Drake v. Hudson River R. R. Co., 7 Barb. 508.) The word "street" includes sidewalks and gutters. {In the matter of Burmeister, 76 N. Y. 174.) The streets of a city or village may be used in any way which shall best promote the interest and business thereof. Where the trustees of a village authorized the erection of a soldier's monument in one of the pub- lic streets, it was held that they could do so without the consent of the owner in fee. {Tompkins v. Hodg- son, 2 Hun, 146; Chapman v. A. & 8. R. R. Co., 10 Barb. 360; Plant v. Long Island R. R. Co., 10 Id. 26.) The common council of a city has no power to give a person permission to inclose part of the street for an indefinite period. {St. Vincent's Orphan Asylum v. City of Troy, 76 N. Y. R. 108.) Such encroachment on the highway for twenty years could not destroy the public right. {Id.) The common council of Syracuse has power to pass an ordinance regulating the width of tire wagons using its streets. {People v. James, 16 Hun, 426. See Sewell V. City ofCoJioes, 75 iV. Y. R. 45.) After a street in New York has been regularly laid out, the common council has no power to diminish its width by autho- rizing the lot owners to inclose a certain number of feet for court yards. {Lawrence v. New York, 2 Barb. 577.) 5. Turnpike and Plank-Roads. Turnpike and plank-roads are also regarded as public highways, established by public authority for public DIFFERENT KINDS OF HIGHWAYS. 9 use. The only difference between these and common highways is, that instead of being made at public ex- pense, they are authorized and laid out by public authority, and made at the expense of individuals, and the costs of construction and maintenance are reim- bursed by a certain established toll. Every traveller has the same right to use them on payment of legal toll, as he would have to use any other public highway. Nor does a highway appropriated to the purposes of a turnpike or plank-road, cease to be a public highway. The general right of the public to use it remains unim- paired. The public in consideration of the payment of certain tolls, is relieved from the burden of amending and keeping it in repair ; and the duties, in this respect, which before belonged to the commissioners of high- ways and other local officers, are transferred to the corporation. But it seems that these local authorities are not ousted of their jurisdiction in the particulars in which their exercise would not conflict with the pur- poses or rights of the corporation, and which the public interest requires should be exercised ; and, especially, that they are not relieved from their duties in respect to encroachments upon highways, which are at the same time used as plank-roads or turnpikes. ( Walker V. Caywood, 31 N. T. R. 51 ; Benedict y. Ooit, %Barl). 459 ; Commonwealth v. Wilkinson, 16 Pick. 175 ; Fort Edward, &c., Plank-road v. Payne, 17 Barb. 567 ; see otherwise Estes v. Kelsey, 8 Wend. 555 ; explained in Walker v. Gaywood, supra.) Since the corporation succeeds to the rights and duties of highway commis- sioners in making repairs and altering the grade of the road, it follows, that it is not liable to any person suf- fering damages for a reasonable and proper exercise of its powers in repairing and grading ; but for any un- reasonable use of these powers the corporation is 10 THE LAW OF HIGHWAYS. responsible. {Benedict v. Goit, 3 Barh. 459 ; see Ire- land V. Oswego, cfec, P R. Co., 13 N. Y. E. 526.) 6. Railroads. It has been held, that a railroad, like a turnpike or plank-road, may be a public highway, to be used in a particular manner. {Rex v. Severn Railway Co. 2 B. & AM. 646; see People v. Kerr, 27 iV". T. R. 205.) But such use is wholly unlike that of an ordinary highway, and, to a great extent, the two uses are in- consistent with each other ; and, it is well settled, that the laying of a railroad on a highway, imposes an additional burden" on it, essentially different from the original object of a highway, and entitles the owner of the fee to additional compensation. ( Williams v. N. T. Central R. R Co. 16 N. Y. R. 97 ; Presbyterian Society v. Auburn, &c. R. R. Co. 3 Hill, 567 ; Spring- field V. Connecticut River R. R. 4 CusTi. 63 ; MaTion V. N. Y. Central R. R. Co. 24 N. Y. R. 658 ) And the rule is the same, whether it be a street in a city or a common highway in the country, except in the city of New York, where the fee of most of the streets is said to be in the corporation. (Id. ; Wager v. Troy Union Railroad Co. 25 N. Y. R. 529 , Carpenter v. The Oswego and Syracuse R. R. Co. 24 JV. Y. R. 655. Id. 658. ) See further on this subject, post, chapter on railroads in highways and streets. "With regard to street or horse railroad, it is thought that they approximate more closely to ordinary high- ways, and that the use of streets for such railroads is within the purpose for which such streets have bt-en opened or dedicated, and consistent with the public use as highways ; and, that, therefore, the legislature can authorize the construction of such railroad in the DIFFEEENT KINDS OF HIGHWAYS. 11 streets of a city, without compensation to the owner of the fee. {See People v. Kerr, 27 N. Y. JR., 194, 203 ; 8. C 37 Barh. 357, and dissenting oijinion of Suthee- LAND, J., in Wager v. Troy Union JR. B. Co. 25 iV. T. R.mi.) The rights of a street railroad company to the use of a street for the purpose of its business is a property right, subject to condemnation for the public use ; the Legislature may authorize other persons, either natural or corporate, to do a similar business in the same street, or to use the tracks of the company, whenever in their judgment the public good demands. {Sixth Ave. JR. Ji. Co. V. Kerr, 72 iV". Y. E. 330.) 7. Bridges. A public bridge may also be a highway, groverned by the same principles of the common law which apply to highways in general. (2 Ld. Raym. 1174 ; 6 JMJod. 255 ; Woolr. on Ways, 195.) The principal circum- stance necessary to constitute a public bridge is, that people at large may have a free and uninterrupted use of it, not upon sufferance, but as a matter of right. (3 Woolr. on Ways, 195.) Yet a bridge may be common to all people without becoming a public highway, so as to render the town responsible for its repairs. Thus, where a corporation or an individual digs a race-way or canal across a highway, and builds a bridge over it, the party building it must keep it in repair, and if an injury happen to another in consequence of its being out of repair, such party is responsible. {JHeacock. v. Sherman, 14 Wend. 58 ; Dygert v. Schenck, 23 Wend. 446.) This principle is commended both by its sound sense and its antiquity. In RoUe' s Abridgement (JRoll. Abr. 368 ; Bridges, pi. 2), citing a manuscript case of 12 THE LAW OF HIGHWAYS. 8 Edw. 2, decided near the beginning of the 14th cen- tury, ihe principle is stated as follows: "If a man erects a mill for his own profit, and makes a new cut for the water to come to it, and makes a new bridge over it, and the subjects are to go over this as over a common bridge, this bridge ought to be repaired by him who has the mill, and not by the county, because he erected it for his own benefit.'' So where a company in making a canal cuts through a highway, and erects a bridge over the canal, they are bound to repair it, as the public derive no benefit from the bridge, more than they had from traveling along tbe solid highway. {Hex v. Kerrison, 3 M. & S. 526.) The public to become chargeable must derive some benefit from the bridge, which they manifestly do not, where the way was as good before the erection of the bridge as after it. Where, however, a man builds a bridge which is useful to the public in general, it is the duty of the town to repair it, notwithstanding it may be of benefit to the builder. (Hex v. T7ie West Riding of TorJc- sMre, 5 Burr 2594 ; He'tcock v. Sherman, 14 Wend. 58 ; see Requa v. City of Rochester, 45 N. T. R. 129.) As where an individual erects a bridge over a natural stream, for his own benefit, and it is of public utility, and is used by the public, the public is bound to keep it in repair, for, in such case, although the bridge is of advantage to the individual, he cannot .be said to have created the necessity for it. {Id. Dygert v. SchencTc, 23 Wend. 446.) In accordance with these cases, where M built, for his private benefit, a bridge across the river Tave, where it intersected the highway, which bridge was used by the public, and was of great public utility, the court DIPrEEENT KINDS OF HIGHWAYS. 13 held that the public must keep it in repair. {King V. Inh. of OlamorgansMre, 2 Bast. 356, note.) So, where a person about forty-five years back erected a mill and dam for his own profit, whereby he deepened the water of a ford, through which there was a public highway, but the passage through which was, before the deepening, very inconvenient to the public, and the miller, about five years afterwards, built a bridge over it ; and there was no doubt that the public had since used it ; but it was admitted that the miller had repaired it ; the Court of King's Bench held that the county and not the miller were chargeable with the reparation, according to the principle, that "if a pri- vate person build a bridge, which afterwards becomes of public convenience, the county is bound to repair it." {Hex. V. Inh. of Kent, 2 M. & 8. 513.) But where the Medway jN'avigation Company were authorized by act of Parliament to make the river navigable, and to amend and alter such bridges or highways as might hinder the navigation, learning tTiem or others as con- venient in their room; and under this authority the company deepened a particular spot in the river, where before had been a ford, and afterwards built a bridge and kept it in repair till its destruction by a flood. It was held that the company and not the county were bound to rebuild the bridge. And per Lord EUenbor- ough, G. J.: "The power given to the company to take or alter the old highway was upon condition of leaving another passage as convenient in its room ; and if they do not perform the condition they are not enti- tled to do the act ; it is a continuing condition, and when the company thought proper for their own bene- fit, to alter the highway in the bed of the river, so that the public could no longer have the same benefit of the ford, they were bound to give another passage over the 14 THE LAW OF HIGHWAYS. bridge, and to keep it for tlie public." {Rex. v. Inh. of Kent, l^Bast. 220.) It is held not to change the rule that the bridge built by a private individual is of public utility only at certain seasons of the year. Thus a bridge was used by the public, at all times, on foot and with horse, but only occasionally with carriages, except in times of flood or frost, when it was unsafe to pass through the riv^r, at which times carriages always passed over the bridge. In ordinary times the carriage road went through the ford, and the bridge was sometimes barred against carriages by means of a post and chain. It was held by the court that such a limited f^njoyment was quite consistent with the idea of a public bridge. {Rex V. Inh. of Northamptonshire, 2 M. & 8. 262.) Again, a causeway and bridge were only used by the public in time of floods, and in time of very high ti< tods, the bridge itself was impassable, but they were at all times open to the public ; it was held that this was a public bridge. {Rex v. Inh. of Devon, Ry. & M. 144. See 2 Camph. 455.) Lord Coke says : " If a man make a bridge for the common good of all the subjects, he is not bound to repair it ; for no particular man is bound to reparation of bridges by the common law, but by tenure or pre- scription." (2 Inst. 701.) But if a man erect a use- less or a merely ornamental bridge, neither he nor i he public are bound to maintain it. {Wellb. onHigli- ways, 326.) At common law the duty of repairing public bridges rested upon the county at large, where it was not shown that any private person, or other body, was charged with that duty. {Rex v. Inh. of West Riding of Yorkshire, 2 East. 342 ; Hill^. Super- visors, &c. 12 If. T. R. 52 ; Hill v. Supervisors Dutchess, 1 Hill 50. 8 Barh. 645.) But this law has DIFFERENT KINDS OF HIGHWAYS. 15 never been in force in this State, since from the earliest times the care and reparation of highways, including bridges, has been committed to town officers. {Hill V. Supervisors, Supra.) It was said by Lord Ellen- borough that "all public bridges Sire prima facie vq- pairable by the inhabitants of the county, without distinction of foot, horse, or carriage bridges, unless they can show that others are bound to repair particular bridges. {Rex\. Inh.. Salop, 12 East. 95.) A toll bridge may also be a highway, only differing from an ordinary public bridge in this, that the public in consideration of the payment of certain tolls, are relieved from the responsibility of keeping it in repair, subject to the payment of , such tolls, the rights and privileges of the public on such bridges are the same as on ordinary public bridges. In the case of Thomp- son V. Matthews, (2 Edw. 312) it appeared that the plaintiffs, under authority from the Legislature, had constructed a bridge across the Harlem river in the manner and of the dimensions directed and required by the act authorizing its construction, and that the defendants were in the habit of hauling across such bridge immense loads of marble, weighing several tons, and thereby greatly endangering the bridge, and an injunction was prayed, restraining such defendants from transporting across the bridge any marble or stone in quantities exceeding at one time or in any one load the weight of two tons. The Vice Chancellor said, "The motion for an injunction cannot be granted. The road across the bridge is undoubtedly a highway, though all persons and carriages passing must pay a toll ; but still it is a public highway. The affidavits in opposition take very much from the force of the allegations in the bill. But this is a case in which th& parties have legal rights. The bridge is a public one. 16 THE LAW OF HiGHWATS. If persons take improper loads and the bridge has been properly constructed, then the owners of it have a remedy by a special action on the case, or in trespass for damage done ; while on the other hand, if passen- gers and their property should sustain an injury by a breaking from ordinary loads, the owners must respond in damages." 8. Fekeies. A ferry also, though its nature is sui generis, is not inconsistent with the general principles of the law regarding highways, for it is a common passage, which is no more than a common highway. (3 Mod. 294 ; Woolr. on Ways, 217.) Most of the confusion which has prevailed upon this subject, appears to have arisen from not distinguishing between the public privilege and the private right, which unite to form a ferry — the public privilege of passing across the water, and the private right to carry passengers over and to receive the toll. ( Wellb. on Highways, 33.) The interests of the public in a ferry is exactly similar to their interest in Highways in general ; consequently they are only possessed of an easement, and can claim no property in the soil. The privilege of landing at either end of the ferry is an easement upon the freehold. In Chambers v. Furry, (1 Teates, 167) the Supreme Court of Pennsylvania held, that the owner of a ferry over a navigable stream had no right to land or receive freight or passengers on the adjoining banks, even though the landing place was a public highway, with- out the owner's consent. The dedication of ground for the purpose of a public road was said to give no right to use it for the other purpose. This doctrine was afterwards referred to, recognized and adopted by the DIFFERENT KINDS OF HIGHWAYS. 17 same, court, in Cooper v. Smith, (9 Serg. & Bawle, 26 ; see also Pipkin v. Wynns, 2 Den. If. C. Rep. 403 ; Ghess V. Manown, 3 Watt, 219 ;) also in this State by Mr. Justice Cowen in Pearsall v. Post. (20 Wend. 132.) The same principle is to be found in Saville 11, pi.- 29, where it is said, that in every ferry the land on both sides the water ought to belong to the owner of the ferry, for otherwise he could not land on the other side. . But this strict and severe rule is somewhat re- laxed in England ; and in Peter v. Kendal, (6 Barn & Cress. 703) the King's Bench denied the justness of the conclusion in Saville, and held that the owner of a ferry need not have the property in the soil on either side. , It was sufficient that the landing place was a public highway. It was a right incident to the ferry, to use such a landing place for the purposes of a ferry. The same conclusion was arrived at in this State by Mr. Jus- tice STiiONG in Fowler v. Mott. (19 Barh. 219; see also Gould V. Hudson P. R. Co., 6 JSf. T. R. 522; 3 Kent 421, note). And this is the most reasonable conclusion upon the right to the use of a public highway to which a ferry is connected. 9. Navigable Eiveks. A navigable river, common to all men, is a highway; and if the water change its course, and go over ground different from that on which it used to run, the high- way will be along the new channel, in the same manner as the old. (1 Hawk. c. 76, § 1 ; 4 Com. Dig. Chimin. A.1;1Q Mod. 382.) But if the river be choked up with mud, and impassable, that would not give the public a right to make use of the adjoining lands by cutting another channel or passage ; though it is quite clear that if the usual track of a highway become im- 3 18 THE LAW OF HIGHWAYS. passable, the public have a right to go on the adjoining lands. (Per Buller in Ball v. Herbert, 3 T. R. 263.) By the common law of England those rivers are navi- gable where the tide flows and reflows ; and the crown has the absolute proprietary interest in such rivers, and in the shores below the ordinary high water mark. But above the flow of tide-waters, or where the tide does not ebb and flow, rivers are not technically navi- gable at common law, though of sufiicient capacity for valuable floatage. {Hale De Jure Maris ; Ex parte Jennings, 6 Cow. 518 ; Morgan v. King, 35 N. Y. R. 458.) The doctrine of the common law has been repeatedly recognized by the Supreme Court of tliis State as the law of our own State, and has as such received the sanction of high legal and judicial authority. (3 Kent, 414; Canal Commissioners v. The People, B Wend. 4M; Canal Appraisers V. The People, 17 Wend. 595; Commissioners v. Kempsliall, 26. Wend. 415 ; Hooker V. Cumvmings, 20 John. 100.) See, however, the opin- ion of Davis, J., in Peoples. Canal Appraisers, 33 N. r. p. 461. Upon this distinction is based a very important lule relating to the ownership of the bed of the stream, and the right of flshery in its waters, to wit : that navi- gable or tidal rivers, so far as the tide ebbs and flows in them belong to the king, or in this country to the State ; and rivers not navigable, that is fresh water rivers, belong to the owner of the adjacent soil. This distinction has no reference however to the right to use the stream for the purposes of passage or transpor- tation ; the rule in that respect being that the public have not only a right to all tide waters, but also a right of way or easement paramount to the right of the riparian proprietors in all rivers which, though DIFFERENT KINDS OF HIGHWAYS. 19 not tidal or navigable in the sense of tlie former rule, are navigable in fact. {Id. Morgan v. King, 35 N. Y. R. 458.) In the latter case, or above tide watet, the public right is one of passage and nothing more, as in a common highway. It is called by the cases an ease- ment ; and the owner of the adjoining land has a right to use the land and water of the river in any way not inconsistent with the easement. If he make any erec- tion rendering navigation inconvenient or unsafe, heig guilty of a nuisance ; and this is the only restriction which the law imposes on him. {Ex parte Jennings^ 6 . Cow. 527 ; Commissioners, etc, v. Kempshall, 20 Wend. 413.) By the common law, also, a river is, in fact, naviga- ble, on which boats, lighters or rafts may be floated to market. {Hale, De Jure Maris ; Commissioners, &c. V. Kempshall,2Q Wend. 413.) But this rule of the cojnmon law as to what degree of capacity renders a river navigable in fact, should be received in this coun- try with such modifications as will adapt it to the peculiar character of our streams, and the commerce for which they may be used. We have many streams of considerable extent not navigable by boats, lighters or rafts, but capable of floating to market single logs or sticks of timber. In many cases large tracts of land bordering upon their banks were originally covered with dense forests, the valuable products of which would have had no avenue to market, if the public easement in the streams had been restricted to naviga- tion by boats or rafts. The true rule is, that the public have a right of way in every stream which is capable in its natural state and its ordinary volume of water, of transporting, in condition fit for market, the pro- ducts of the forests or mines, or of the tillage of the soil upon its banks. It is not essential to the right, 20 THE LAW OF HiaHWAYS. that the property to be transported should be carried in vessels, or in some other mode, whereby it can be gnided by the agency of man, provided it can ordinarily be carried safely without such guidance. Nor is it necessary that the stream should be capable of being thus navigated against its current, as well as in the •direction of its current. If it is so far navigable or floatable, in its natural state and its ordinary capacity, as 1 o be of public use in the transportation of property, the public claim to such use ought to be liberally supported. {Morgan v. King, 35 iV. Y. R. 454 ; Shaw V. Crawford, 10 John. 236.) JSTor is it essential to make a stream a public highway that the capacity of the stream as above defined should be continuous, or in other words, that its ordinary state, at all seasons of the year, should be such as to make it navigable. If it is ordinarily subject to peri- odical fluctuations in the volume and height of its water, attributable to natural causes, and recurring as regularly as the seasons, and if its periods of high water or navigable capacity ordinarily continue a sufficient length of time to make it useful as a high- way, it is subject to the public easement. (Id. Browne V. Chadbourne, 31 Maine 9, See, however, Munson v. Hungerford, 6 Barh. 265 ; Curtis v. Keesler, 14 Barl>. 511.) But this is extending the principle quite far enough. And where it appeared that a stream was not capable of floating even single logs, except during seasons of high water, which were about two months in a year, and that then the logs, so floated, had to be aided in their passage by men in skiffs or on shore ; that the current was so broken and impeded by rapids and rocks, that the logs were sometimes badly injured, and the ends were always more or less bruised up ; and that DIFFEEENT KINDS OF HIGHWArS. 21 the stream was used only occasionally for floating logs, etc., the Court of Appeals decided that such stream was not, in its natural state, a public highway, even within the liberal rules above laid down. {Morgan v. King, 35 N. Y. R. 460.) The ' Hudson river, where in fact navigable above tide- water, is a public highway, though not declared so in the act declaring certain rivers highways. {Pal- mer V. Mulligan, 3 Caines, 307.) So, the waters of the Albany basin, as well as the navigable waters Of the river are a public highway. {Hart v. Mayor of Albany, 2 Paige, 213 ; -S'. C. affi'd,9 Wend., 571.) So it was declared, that the Battenkill, in the county of Washington, though not enumerated in the statute declaring certain rivers and streams public highways {Ses. 24, c. 186, § 34), yet having been used as such, by the public for the purpose of rafting down boards and timber for more than 26 years, the usage had created a public right ; and that an action would lie against the owner of a mill-dam for so obstructing the navigation, as to injure the raft of the plaintifE, in passing over. {Shaw v. Crawford, 10 John. 236.) A river which is declared by statute a public highway, is such only for the purposes of navigation, and is not such highway in places where it is not in fact navi- gable. {Mayor of Rochester v. Curtiss,, Clark, 336.) By chap. 533 of Laws of 1880, it is made unlawful for any one to build a dam in a navigable river, without an apron fifteen feet vdde, and at a proper slope for the purpose of floating logs. This does not apply to the Hudson river. It was said by Sir Matthew Hale, in his treatise De Jure Maris, that, "if any person at his own charge, makes his own private stream to be passable for boats or barges, either by making of locks or cuts, or draw- 22 THE LAW OF HIGHWAYS. ing together other streams ; and hereby that river which was his own, in point of propriety, become now capable of carriage of vessels ; yet this seems not to make it juris publici (or a highway) ; and he may puU it down again, or apply it to his own private use. For it is not hereby made to he Juris publici unless it were done at a common charge, or by a public author- ity ; or that by long continuance of time, .it hath been freely devoted to a public use." And the same prin- ciple has been confii-med in this country to the effect that if a person be the owner on both sides of a water course, and at his own expense makes it boatable by artificial means, it does not thereby become public ; it is still private property and cannot be infringed, even by the Legislature, without compensation being made. {Wadsworth v. Smii7i, 2 Fairf. (Me.) R. 278.) The public have likewise a right to travel on a public river on the ice ; and, therefore, if any one cuts holes through the ice upon or near the place where there has been a winter-way for twenty years, he is liable to the payment of all damages sustained thereby, by those travelling upon such way, without carelessness or fault on their part. {French v. Cavip., 6 Shepl. {Me.) M. 438.) The Legislature of a State cannot, by declaring a river navigable, which is not so in fact, or by nature, deprive the riparian owners of their rights to the use of the water for hydraulic and other purposes, without rendering compensation. ( Walker v. Board of Public Works, 16 Ohio, 540.) Nor has the State a right, without compensation, to destroy the property of individuals situated upon rivers above tide waters, in making waters navigable which are not so by nature, or to appropriate such waters to the public use by artificial erections or improvements. {Per Chancellor DIFFERKNT KINDS OP HIGHWAYS. 2'^ and Senator Allen in Canal Commissioners v. The People, f) Wend. 423. See Canal Appraisers v. Peo- ple, 17 Wend. 571 ; Commissioners, &c., v. KempsTiall. 26 Wend. 404.) The public have no highway along the margin of navigable rivers and lakes, unless the same has been acquired by express grant or prescription. {Ledyard V. 2'en Eycjc, 36 Barh. 102.) Nor has the public a free access to wharves and buildings, erected under author- ity granted by statute, on the margin of a navigable river. It does not follow from the river' s being a high- way, that land appropriated from its bed must remain a highway. {Wetmore v. Atlantic White Lead Co., 37 Barh. 70 ; see 73 N. Y. 179.) 10. Canals. The state takes title in fee simple, in lands appro- priated for use as canal, and they will not revert upon the abandonments of their use for the purpose of a canal. {Rexford v. Knight, \\ N. Y. R. 308 ; Baker V. Johnson, 2 Hill, 342 ; 6 Hill. 359 ) The canal be- ' comes a public highway. {Conklin v. The Phoenix Mills of Seneca Falls, 62 Barb. 299 ; Robinson v. Chamberlain, 34 N. Y. R. 389.) The State is vested with the title to all the lands included within the boundaries of the map made at the time of appropria- tion. {R S. p. 218, § 4.) If the highway is within these boundaries of course it passes to the State. The statute (1 R. 8. p. 221, § 19) authorizes the canal com- missioner in charge of the work of constructing or improving any canal, to discontinue or alter any pub- lic highway whenever it interferes with the proper location or construction of such work. But the title of the owner subject to the easement remains perfect. 24 THE LAW OF HIGHWAYS. not only to the land covered by the highway but also ■ to all the material within its boundaries, except such as may be needed to build or maintain the roads. [Higgins v. Reynolds, 31 iV. T. R. 151.) CONCERNING THE FEE IN HIGHWATS. 25 CHAPTER II. CONCERNING THE FEE IN HIGHWATS. 1. Eights of the owner of the fee. 2. Depasturing highways. 3. How far public may uBe highways. 4 Concerning the fee in turnpikes, railroads, &c 5. Carrying on business lu highway. 6. Presumption from adjacent ownersliip 7. Boundaries by highways. ■8. Boundaries by rivers. 9. What rivers are navigable. 1. Rights op the Owner of the Fee. A highway, though common to all people, is said to be nothing but an easement on the lands over which it passes. The public have no other right in it than the right of passage, with the powers and privileges inci- dent to that right ; such as digging the soil and usi5.g the timber and otlier materials found within- the space of the road, in a reasonable manner, for the purpose of making and repairing the road and its bridges. The owner of the soil still retains his exclusive right in all the mines?, quarries, springs of water, timber and earth, for every purpose not incompatible with the public right of way. The person in whom the fee of the road is, may maintain trespass or ejectment, or waste, in regard to the same ; and, upon the discontinuance or abandonment of the right of way, the entire and ex- clusive property and right of enjoyment revest in him. {Jackson v. Hathaway, 15 John. 447; Carpenter v. Oswego, &c., R. R. Co. 24 JSF. Y. R. 655 ; 2 Stra. 1004 ; 1 Burr. 133 ; 11 East. 51 ; 1 Cowen, 238.) While this rule as to the extent of interest which the public acquire in highways is strictly true as to 26 THE LAW OF HIGHWAYS. highways in the country, it must be taken with some limitation as to the streets of a city or large village. There are certain uses, such as the construction of sew- ers and the laying of gas and water pipes, to which the latter are generally applied. These— called urban servitudes — are the necessary incidents of streets in large cities, and are paramount to the rights of the owner of the fee. Whether the streets be laid out and opened upon property belonging to the corporation, or whether they become public streets by dedication, or by grant, or upon compensation being made to the owner of the fee, they have all the incidents attached to them which are necessary to their full enjoyment as streets ; and the corporation has the power to author- ize their appropriation to all such uses as are condu - cive to the public good, and do not interfere with their complete and unrestricted use as highways. (Mllliau V. Sharp, 15 Barb. 210, per Edwards, P. J. ; People V. Kerr, 27 iV. T. R. 202.) But see Kelsey v. King, (33 Row. 39.) With regard to the streets of New York, it is held that the fee in tlie soil of a'l such as have been opened under the provisions of the acts of 1807 and 1813, vests in the corporation for public use. {Hoff. Treatise, 289 ; People v. Kerr, 27 JV. Y. B. 188; Brake V. Hudson River R. R. 7 Barb. 508.)' By chapter 63, of the Laws of 1873, the commjsion- ers are authorized to allow, upon application in writing, the laying of water pipes in the highway, provided it shaU not interfere with public travel, and that all earth be replaced, &c. Provided further, that no such pipe shall be laid under the traveled i)art of such highway, except to cross the same. (As to right to lay gas pipe, see Calkins v. Bloomfleld Gas Light Co. 1 iV. Y. Sup. 541.) It is the established inference of the common law CONCEENING THE FEE IN HIGHWAYS. 27 that the owners of the lands adjoining a highway, either in the city or country, are the owners of the fee of the highway, as well as the waste land bordering thereon. But this inference may be rebutted or nar- rowed by evidence, for it is quite possible, as we shall hereafter see, for one man to own the adjoining land and another the fee of the highway. {Bissellv. N. T. Central R. R. Co. 23 N. Y. B. 61 ; Wager v. Troy Union R. R. Co. 25 N. T. R. 629 ; 3 Kent, 434 ; Grose V. West, 7 Taunt. 39 ; 2 Stark, JSf. P. 468.) Where one claims land as being a part of a street adjoining the premises described in his deed, he can not also insist that the land is not subject to a servi- tude as such street. It is only by assuming that it is a street that he acquires any title to the land therein. And being part of a street, his title is subject to the easement over it. ( Wood v. City of WilUamshurgh, 46 Barb. 601.) The title of the owner of the fee is absolute, subject only to the public easement ; and he may use the land in any way not inconsistent with this easement. He may sell the land through which the highway runs, without subjecting himself to an action for a breach of covenant of seizin and right to convey, contained in the deed of conveyance, since the seizin and right to convey still continue in him. ( WTiifbeek v. CooTc, 15 John. 483; Fairfield v. Williams, A Mass. 427/ Washington Cemetery v. P P & C. R. R. Co. 68 JY. T. R. 591.) He may, also, have an action of trespass against any person who exclusively appropriates the soil, or who digs up the soil, or cuts down the trees growing on the side of the road and left there for shade or ornament (3 Kent. 433 ; Gidney v. Earl, 12 Wend. 98 ; Willoughby v. Jenks, 20 Wend. 96) ; or against one who stands in the highway opposite his land and 28 THE LAW OF HIGHWAYS. uses abusive language towards him. {Adams v. Riv- ers, 11 Barb. 390.) So, he may maintain ejectment against any person appropriating it to private occupation. {Goodtitle v. Alker, 1 Burr. 133; Carpenter v. Oswego, &c., Ji. R. Co., 24 JSr. T. R. 655.) In the case of Goodtitle v. Alker, where the plaintiff brought an action of eject- ment for land over which was a public right of way, it was objected by the defendant that the land being sub- ject to an easement, the sheriff could not deliver pos- session. Lord Mansfield, 'C. J., said: "There is no reason why he should not have a right to all remedies for the freehold, subject still, indeed, to the servitude or easement. An assize would lie if he should be dis- seised of it ; an action of trespass vrill lie for an injury done to it. I see no ground why the owner of the soil may not bring ejectment as well as trespass. It would be very inconvenient to say, that in this case he should have no specific legal remedy ; and that his only relief should be repeated actions of damages for trees, mines, salt springs and other profits under ground. It is true, indeed, that he must recover the land subject to the way; but surely he ought to have a specific remedy to recover the land itself, notwithstanding its being sub- ject to an easement upon it." The owner of the fee may also carry water in pipes under the highway, or sink a drain or raceway, or any water-course beneath the highway, if he can so do it as not to deprive the public of their easement. It is a common practice for the owners of water-mills or sites for water-miUs, to sink water-courses for the use of their miUs in their own land under highways ; but care must be taken to restore the way to a safe and passa- ble condition by building a bridge or otherwise — since, if injury is sustained by any one, in consequence of CONCEENING THE FEE IN HIGHWAYS. 29 the highway' s being less safe or passable, the water- course will be regarded as a nuisance, and the owner liable for damages to the party injured, in the absence of gross negligence on his part. {Dygert v. SchencJc, 33 Wend. 446 ; Perly v. Chandler, 6 Mass. 454 ; Mat- ter of petition of HMneland, etc., 68 N. T. R. 105/ Beck V. Garter, 68 N. T. 283.) And, it is the duty of the one constructing the water- course, to keep the way over it in repair at his own expense ; and, if he should neglect to do it, he may be indicted for the nuisance, and the nuisance abated, besides his liability to parties injured. {Id. , Harlow V. Hwmiston, 6 Gow. 191.) So, if the owner of the fee, without special authority, makes and continues a cov- ered excavation, as an area, under a public street or highway, for private purposes, he is, in the absence of negligence in the party injured, responsible for all injuries resulting from the way being thereby less safe; and, the fact that the covering of the area was done by a contractor, who contracted to do the work properly, vdll be no defense to an action for damages. The owner of the area is bound to make and at all times keep the street as safe as it would have been, if the area had not been constructed. {Congreve v. Smith, 18 N. T. R. 79.) A hotel proprietor cannot confer on a coach proprie- tor an exclusive right to occupy the street before the hotel, having no such right himself. {Diez v. Lamb, ■6 Roit. 537.) The general doctrine is that the public are entitled to the street or highway in the condition in which they placed it ; and whoever without special authority ma- terially obstructs it, or renders, its use hazardous, by doing anything upon, above. or below the surface, is guilty of a nuisance, and, as in all other cases of pub^ 30 THE LAW OF HIGHWAYS. lie nuisance, individuals sustaining injuries from it, without want of due care, have a remedy by action against the author or continuer of the nuisance. And it makes no difference whether the fee of the street is in a municipal corporation or in the individual doing the act ; in either case the act of injuring the easement is Olegal. {Id.; Wendell v. Mayor, &c., of Troy, 39 Barb. 329, and cases ; Harlow v. Hunxeston, 6Cowen, 189.) The owner of the fee of the highway may also re- move the soil, or sell it to be removed, if it be done without injury to the highway, or to the ingress and egress of adjoining owners. { Willi ains v. Kenney, 14 Barb. 629.) In this case, the owner of the soil in a highway, sold P. a bank of sand therein in front of the plaintiff's premises, stipulating, however, that P. should not dig so as to injure the highway or the plaintiff ' s premises. ' P., in taking away the sand, dug down four or five feet below the surface of the ground for a distance of three rods opposite the plaintiff's land. The excavation was about eight feet from the plaintiff's fence and the earth had partially caved in, to within about four feet of the fence, but none of the plaintiff ' s earth, or fences, or improvements had been in the least disturbed. In delivering the opinion of the court, Johnson J. said, "If there was a bank of sand valuable for buUding purposes, any portion of which could be removed without prejudice to the pub- lic easement or the plaintiff's rights of ingress and egress, the defendant had a perfect right to remove it or sell it. He sold it, but was careful to stipulate that no more of it should be removed than could be done without injury to the highway, or to the plaintiff. If Pratt went on and committed a wrong, ta violation of his stipulation, the defendant is not responsible. Pratt CONCERNING THE FEE IN HIGHWAYS. 31 was not his servant or agent, or acting under his au- thority while infringing on the plaintiff ' s rights. But I am of opinion that had the defendant himself done the act complained of, no action could have been main- tained by the plaintiff." The owner of the fee is entitled to all trees standing or lying on the land. over which a highway is laid out, except such as may be necessary to make or repair the highway or bridges on the same land (2 R. 8. {5t7i ed.) 415 ; 18 Bliz. H. R. cited 11 Jac. B. R.); and he may maintain trespass against any person who shall cut down or injure siich trees or timber, unless such person was duly authorized to cut them, and did cut them for the purpose of making or repairing the road or bridges on the same land as above provided. (/See Bahcock v. Lamh, 1 Cow. 238; Bridge Co. v. Bachman, 4 Lans. 523 ; 66 iV". T. R. 261.) 2. Depasturing Highways. It is a well settled principle of the common law that the public have no right to depasture a highway, since the freehold and all its profits belong to the owner of the adjoining soil. (Savage 0. J., 3 Wend. 147; 16 Mass. 33.) In Dovaston v. Payne (2 IT. Black, 527), Bra. Abr. Trespass, pi. 131 was cited to show that the owner of the soil of a highway may bring trespass, if cattle do anything but merely pass and repass. And Eyre, C. J. and Heath, J. expressly called the right of passage along a highway an easement; and all the judges agreed that it would be trespass if cattle were found depasturing on a highway. It was an action of replevin, for taking the cattle of the plaintiff ; and a plea was made in bar of the avowry of damage feasant, that the cattle,being in a highway, escaped through 32 THE LAW OF HIGHWAYS. defect of fences. To this plea a special demurrer was put in, for that it did not sho^ that the cattle were passing through and along the said highway. For if the;^ were trespassing, then the defect of fences was no excuse. And the plea was decided to be faulty, be- cause the cattle would be trespassing if they did any- thing more than pass and repass ; and, therefore, this fact being traversable, should be stated with certainty. This authority was confirmed in its fullest extent in the case of Stevens v. Whistler (11 East^ 51). But a different rule was formerly adopted in this State, or the courts held that the statute which em- powered the electors of each town at their annual town meeting ' ' to make rules and regulations for ascer- taining the sufficiency of all fences in such town ; and for determining the times and manner in which cattle, horses or sheep shall be permitted to go at large on highways," had made it lawful in towns where such regulations had been made, for cattle, horses or sheep to go at large on, and depasture the highways, and that the compensation paid the owner of the land, on laying out the highway, covered not only the easement of a public way, but also the right to depasture the same. {Griffin v. Martin, 7 Barb. 297 ; Harden- hurgTi v. Lockwood, 25 Barb. 9 ; see contra White v. Scott, 4 Barb. 56.) These decisions were based solely on the idea that the Legislature had made it lawful for cattle to go at large on highways, and are, therefore, entirely superseded by the Code, which forbids any cattle, horses, sheep, swine or goats running at large in any public street, park place or highway." (Laws of 1880, chap. 178, §§ 3085 to 3107 inclusive. See Strays, chap. XVII.) We are, therefore, remitted to the common law rule that cattle cannot depasture the highways. (See Hoi- DIFFERENT KINDS OF HIGHWAYS. 33 liday v. Marsh, 3 Wend. 142.) In 22 Edw. IV, 8 pi. 24, it was said by one of the court, that if one drive a herd of cattle along the highway where trees, or wheat, or any other kind of corn is growing, if one of the beasts take a parcel of the corn, if it be against the will of the driver, he may justify ; for the law will in- tend that a man cannot govern them at all times as he would ; but if he permitted them, or continued them, then it is otherwise. 3. How Fae Public May Use Highways. Since the public acquire no right in a highway other than the right of passage and the privileges necessarily incident to that right, it follows that they cannot use or authorize others to use such highway for any other purposes. This limitation, however, does not apply to cities ; for there the public right is extended so as to authorize the use of streets for purposes of sewer- age, for the distribution of light and water, and for the furtherance of public morality, health, trade and convenience, and reduces the interest of the owner of the soil to a naked fee of only nominal value. {MU- hau V. Sharp, 15 Barh. 210 ; People v. Kerr, 27 N. T. B. 202 ; White v. Cincinnati, 6 Peters, 432 ; Mat- ter of Petition of Rhinelander, 68 N. T. R. 105.) Subject to this easement of a public way, and to these urban servitudes in cities, the rights and inter- ests of the owner of the fee remain unimpaired. In the case of Sir John Lade v. Shepherd (2 Sir a. 1004), which was an action for trespass, it appeared that the place where the supposed trespass was committed, was formerly the property of the plaintiff who, some years before, built a street upon it, which had ever since been used as a highway ; that the defendant had land 4 34 THE LAW OF HIGHWAYS. contiguous, parted only by a ditch, and that he liadl laid a bridge over the ditch, the end whereof rested on the highway. It was insisted for the defendant, that by the plaintiff ' s making it a street it was a dedication of it to the public ; and that, therefore, however he might be liable to indictment for a nuisance, yet the plaintiff could not sue him as for a trespass on his pri- vate property. The court remarked : It is certainly a dedication to the public, so far as the public has occa- sion for it, which is only for a right of passage. But it never was understood to be a transfer of the absolute property in the soil. So the plaintiff had judgment. {See also 2 Inst. 705.) It is clear that the Legislature has no power to au- thorize any individual, company or corporation to enter upon and appropriate the highway, for purposes, other than those to which it has been originally dedi- cated, without providing a just compensation therefor. {Presbyterian Society, etc., v. Auburn, <&c., R. H. Co., %Hill, 567; Williams v. N. Y. C. R. R. Co., 16 N. T. R. 97.) In accordance with this, it has been held that the laying of a railroad track in a highway im- poses an additional burden upon the owner of the fee and is a taking of property, within the meaning of the constitutional provision which forbids such taking without compensation. The company can, therefore, derive no title under acts of the Legislature, unless provision is made for the appraisal and payment of damages in the mode provided by law. ( Wager v. T)-oy Union R. R. Co., 25 IST. T. R. 526; Carpenter v. Oswego, &c., R. R. Co., 24 N. Y. R. 655 ; Mahon V. N. Y. Central R. R. Co., id. 658;- Fletcher v. Au- burn and Syracuse R. R. Co., 25 Wend. 462.) Such use of the street, without acquiring the title of the owner of the fee, or his license, is a continuing tres- CONCERNING THE FEE TN HIGHWAYS. 35 pass, and such owner may maintain ejectment to re- cover the land, subject to the public easement as a highway. {Wager v. Troy Union R. H., supra.) As to whether a railroad company can acquire an ex- clusive right to the use of piers. (See Matter of N. T. a and H. R. R. R. Co., 77 -N. Y. R. 248.) So the Legislature cannot, by declaring a river a public highway which is not in fact or by nature navi- gable, deprive the riparian owners of their rights to the use of the water for hydraulic and other purposes, without rendering compensation. ( Walker v. Board of Public Works, 16 OJiio, 540.") Nor has the State a right, without compensation, to destroy the property of in- dividuals situated upon rivers above tide water in mak- ing waters navigable which are not so by nature, nor to appropriate such waters to the public use by artifi- cial erections or improvements. {Per Chancellor, and per Senator Allen in Canal Commissioners v. People, 5 Wtnd. 423 ; see Canal Appraisers v. People, 17 Wend. 571; also 26 Wend. 404.) By the Laws of 1879, chapter 214, any turnpike company has power to lay iron rails in the highway for street railroad pur- pose, except in counties of Cortland, Orleans, Kings, Oneida, New York and Steuben. A street railroad cannot prevent another railroad company from laying a double track in the same avenue. {N. Y. C. and H. R. R. R. Co. V. Forty -second and Gd. S. R. R. Co., 50 Pari. 285) 4. Concerning the Fee in Turnpikes, Rail- roads, &c. Turnpike roads, plankroads and railroads, like ordi- nary highways, are, as a general rule, simple ease- ments, the fee remaining in the owner of the soil, and, 36 THE LAW OP HIGHWAYS. upon their abandonment, reverting without further incumbrance. During the existence of such road, the rights of the owner of the fee are subject to the same rule as in case of ordinary highways. {People v. White, 11 Barh. 26 ; Hooker v. Utica, &c. Turnpike Co. 12 Wend. 371 ; Worcester v. Western R. R. Co. 4 Met. 564 ; Haswell v. Vermont Central R. R. Co. 23 Vt. 228.) In the case of Davidson v. Crill, Lord Kenyon held, that the trustees of a turnpike road had not the soil thereof vested in them, so as to be enabled to give a sufficient consent to the diverting of a public footpath into their highway. His lordship observed, ' ' the soil was not vested in them, but remained in the persons who were entitled to it before the act passed, by which they were appointed." The trustees have only the cait- iroZof the highway. (See 1 ^a*^. 69.) Trespass lies against a servant of a turnpike company for plowing on the road, unless it be done for the repairing of the road. {Adams v. Emerson, 6 Pick. 57 ; Robbiiis v. Borman, 1 Id. 122.) But it is an elementary principle of the law that where a power, right or thing is granted, either to a natural or artificial person, all the incidents are granted which are necessary to the enjoyment of the power, right or thing ; and it has, accordingly, been held, that a turnpike company have not only the right to use the road for the purposes of travel, but may make such use of the land below the surface as may be necessary to secure and maintain the proper enjoyment of their franchise ; that they may sink posts in the earth for the gate to swing on, excavate the soil to drain the road, and it was even thought that they might place their toU-house in the road, and dig a cellar, well, etc., under the restriction that the highway be not too much straightened. {Tucker v. Tower. 9 CONCEBKING THE FEE IN HIGHWAYS. 37 Pick. 109 ; Bridge Jhirnpike Co. v. Slower, 2 W. & Serg. 548.) While tlie interest of incorporated companies in turnpike roads, plankroads and railroads, is usually nothing more than an easement, it is not clear that they may not, under some circumstances, become vested with the fee of the soil. In the case of The People V. White, (11 Barh. 26,) the land in question had been taken in pursuance of . an act of the Legisla- ture, for the construction of a canal, and after having been used as the bed of a canal for a number of years, . was abandoned by the State, and the canal located in a different place. The court held, in a very able and well considered opinion, that such land, when no longer necessary for public use, reverted to the origi- nal owner, although the act under which it was taken declared it should vest in the State, in fee simple. (See also cases cited by O' Conor, counsel for the appel- lants in Heyward v. Mayor, &g. of New York, 7 N. Y. R. 314.) But in Heyward v. The Mayor of New York, (supra and 8 Barb. 486,) where lands had been taken by the corporation of New York, in fee simple, under authority of Legislature for the extension of an alms house, and had been used as such for twenty- seven years, and then the alms-house had been re- moved to another site, the Court of Appeals held, that there was no reversionary estate in the representatives of the original owner, and that the corporation might sell such lands to private individuals. The case of The People v. White, was neither cited nor alluded to. It may be safely said, that this case is distinguishable from those of turnpikes, plankroads, and railroads, inasmuch as either of the latter is bound as a condition of its existence, to continue the road for the public use, and when it ceases from abandonment or otherwise to 38 THE LAW OK HIGHWAYS. be a company, the title must, from necessity, vest in some one else, and it would seem reasonable that it should revert to the original owner. The cases bearing upon the question of reversion in such cases may be found in the points of the Hon Charles O' Conor, coun- sel for appellants in Heyward v. Mayor, &c., cited above. 5. Cakrying on Business in Highway. The right of the public to an uninterrupted passage in a highway being paramount to the owner's rights in the soil, it will be unlawful for him to carry on " any part of his business therein to the annoyance of the public. A temporary occupation, however, of a part of .a street or highway, by persons engaged in build- ing, or in receiving or delivering goods from stores or warehouses, or the like, is allowed from the necessity of the case ; but a systematic and continued encroach- ment upon a street, though for purposes of carrying on a lawful business, is unjustifiable. {People v. Cun- ningham, 1 Denio, 524.) The necessity to justify such temporary occupation need not be absolute ; it is enough if it be reasonable. No man has a right to throw wood or stones into the street at his pleasure ; but inasmuch as fuel is neces- sary, a man may throw wood into the street for the purpose of having it carried to his house, and it may lie there a reasonable time. So, because building is necessary, stones, bricks, lime, sand and other mate- rials may be placed in the street, provided it be done in the most convenient manner. On the same pi'inci- ple a merchant may have his goods in the street for the purpose of removing them to his store in a reason- able time. But he has no right to keep them in the DIFFERENT KINDS OF HIGHWAYS. 39 street for the purpose of selling them there, because there is no necessity for it. {Commonwealth v. Pass- rniore^ 1 Berg. & Rawl. 219. ) So, one who has occasion to leave a load in a highway must remove it with promptness. If he lets it remain there an unreason- able length of time, it may be removed as a nuisance. {Northrop v. Burrows, 10 Abh. 365.) 6. Presumption from Adjacent Ownership. The presumption of law is that the owners < tf lands adjoining a highway, either in the city or country, are the owners of the fee of the highway. {Bissell v. N. T. Central B. B. Co. 23 JV. Y. B. 61 ; Wager v. Troy Union B. B. Co. 25 JY. Y. B. 529.) This applies to the city of New. York. {Mott v. New YorTc, 2 Hilt. 358. ) If one man own the lands bordering both sides of the highway, then he is presumed to own the fee of the whole road ; but if different owners own the lands on the different sides, then each is i)resumed to own to the center of the way — ad medium fllum vice. But where an adjoining owner enclosed a portion of the highway, which he continued to cultivate so en- closed, for twenty-eight years, it was held that even on the supposition that the public easement was there- by discharged, the line of- separation between the op- posite proprietors remained as it was previous to the enclosure, the center of the original highway. ( Watrous V. Southworth, 5 Conn. 305 ; PecJc v. Smith, 1 Conn. 127.) This presumption of ownership may, however, be rebutted, for one man may own the adjoining lands and another the soil of the road. 7, Boundaries by Highways. It is likewise a pi-esumption of law that a conveyance 40 THE LAW OF HIGHWAYS. of landSj bounded on a highway, carries with it the fee to the centre of the road as part and parcel of the grant. The idea of an intention in the grantor to withhold his interest in a road to the middle of it, after parting with all his right and title to the adjoining land, is never to be presumed. It would require an express declaration or something equivalent thereto, to sustain such an inference ; and it may be considered as the general rule, that a grant of land, bounded upon a highway or river, carries the fee in the highway or river to the centre of it ; provided the grantor at the time own to the centre, and there be n6 words or specific descrip- tion to show a contrary intent. (3 Kent. 433 ; Bissell V. N. Y. Central B. R. Co. 23 N. Y. R. 61 ; Cortelyou V. Van Brunt, 2 JoTin. 357 ; Jackson v. Hathaway, 15 John. 447; Bliss v. Johnson, 73 JST. Y. R. 529.) Whether the fee of the highway passes or not is purely a question of intention, to be ascertained in each par- ticular case from the deed of conveyance, and by the localities and subject matters to which it applies. ( Webber v. Eastern R. R. Co. 2 Metcalf, 151.) It can- not pass as incident or appurtenant to the bordering land, since it is in itself a distinct and separate parcel of land. {Jackson v. Hathaway, 15 John. 447.) If the owner of land through which a road is laid out, convey the land on each side of it by metes and bounds, which exclude the highway, the right of property in the soil of the road does not pass. ( Yates v. Hatha- way, 15 John. 447 ; Mann v. Woi'rall, 53 N. Y. 44.) And the original owner may maintain ejectment for an encroachment thereon. {Etz v. Daily, 20 Barb. 32 ; overruling, 11 Barb. 414.) Where a farm is bounded along a highway, or upon a highway, or by a highway, or running to a highway, there is reason to infer that the parties meant to the DIFFERENT KINDS OF HIGHWAYS. 41 middle of the highway, and the grant will be so con- strued. {Id.; Child v. Starr, 4 Hill, 369 ; Hammond V. McLachlan, 1 Sandf. 323 ; Herring v. Fisher, id. 344. ) But if the words describing the boundaries are by the side of, or by by the margin of, or hy the line of a highway, or by other equivalent expressions, the fee of the highway is not included. {Id. Jones v. Cowman, 2 Sandf. 234 ; Augustine v. Brett, 15 Hun, 395.) A line not described as running on a street, but which in fact does, by courses and distance run along the side of a street, is to be held to convey the land to the centre of the street, as if the line were described, in words, as running along the street. The road or street, though not mentioned, is in the nature of a monument, which controls the courses and distance. {Sizer v. Devereux, 16 Barb. 160.) A conveyance of city lots bounded on a piece of land laid down and designated in a map of such lots, as a street, which lots were sold with reference to such map, carries the grantee to the centre of such projected street, although it was never adopted as a street by the public authoritit's. {Bissell v. iV. T. Central R. R. Co., 23 N. Y. H. 61 ; Hammond v. McLachlan, 1 Sandf. 323. ) In the case of Bissell v. If. T. Central R. R. Co., the conveyances of the lands in question were executed by M. , the original proprietor, to differ- ent individuals, and described the lots invariably by their numbers ; ' ' references being had to the allotment and survey by Elisha Johnson." In some cases the sizes of the lot was given, ' ' being 33 feet front and rear and 99 feet deep. ' ' There was no express mehtion of' any street in any of the deeds. It appeared that before sellinir any of the lots, the said M., placed his map in the hands of agents engaged in selling his lots, and that they made sales in reference to the map. On 42 THE LAW OF HIGHWAYS. this map tlie lands in controversy were laid down as "Erie street," and the lots conveyed, lay on both sides of such street. The question before the court was stated by the judge delivering the opinion, to be whether a conveyance of a lot bounded on a piece of ground thus laid out upon the map as a street, and called a street, but which was not in fact a public street or highway, carried the grant to the middle of the street. The court held that it did ; and that the ^same rules of construction were to be' applied to grants bounded by city streets as were applied to those bounded by highways in the country. There is a class of cases called the New York City Street Cases (4 Cow. 542 ; 1 Wend. 262 ; 2 id. 472 ; 1 Hill, 189 ; .8 Wend. 85 ; 11 id. 486 ; 11 id. 650 ; 18 id. 411 ; 19 id. 128), which seem to assume that a different construction should be put upon such conveyances of city lots bounded by a projected street ; but in none of them is it distinctly decided as between grantor and grantee, that the former retains any title to the lands within the line of the street. (See as to these cases, Oakley, C. J., in Hammond v. McLachlan ; Bissell V. N. T. Central R. R. Co., supra ; Mottv. New York, 2 Hilt. 35t<.) Yet it would seem that in grants of city lands, where there are nice measurements and small and exact quantities, which are more definite in respect of intent than by clear inference, the soil of the street may be excluded. {Tyler v. Hammond, 11 Pick. 193 ; Union Burial Ground, v. RoMason, 5 Whart. 21.) 8. Bound AEiES by Riveks. It is a well-settled principle of the common law. that the same rules apply in the construction of a grant GONCEKNING THE EEE IN HIGHWAYS. 43 bounded, by a river not navigable", as are applied to grants bounded by a highway. (3 Kt7it, 432 ; CMld V. Starr, 4 Hill, 369 ; Cora, of Canal Fund v. Kemp- ^hall, 26 Wend. 404.) It is said by Sir Matthew Hale, in his justly celebrated treatise, De Jure Maris, that "fresh rivers, of what kind soever, do of common right belong to the owners of the soil adjacent ; so that the owners of the one side have, of common right, the propriety of the soil ; and, consequently, the right of fishing, usque filum, aquce ; and, the owners of the other side, the right of soil or ownership, and fishing unto t^B filum aqua, on their side; and, if a man be owner of the land of both sides, in common presumption, he is owner of the whole river." " But special usage may alter that common presumption, for one man may haye the river ^nd another the. soil adjacent " The right of soil of ownei's of lands bounded by the sea, or on nav- igable rivers, where the tide ebbs and fiows, extends, however, only to highwater mark ; and the shore below and the bed of the stream belong to the State as trus- tee for the public. {^ Kent, '^Tt .) The presumption is, that the riparian proprietor is the owner of the alveus, or bed of the river adjoining his land, if it be not navigable, to the middle or thread of the stream, and a grant of land bordering such river is, in the absence of express terms of limitation, pre- sumed to convey usque filum aquoe, or to the thread of the stream. (3 Kent. 427 ; per Chancellor and per Allen, in Canal Commissioners v. People, 5 Wend. 423 ) Thus, where the bound-iry is to a river, ox along a river, or hy a river or any other equivalent express- ion, the grantee takes to the center or thread of the stream. {Child v. Starr, 4 Hill, 369 ; per Wal- woKTH, Chancellor ; see cases cited in Kx parte Jen- nings, 6 Cow. 544.) So, running to a monument stand- 44 THE LAW OF HIGHWAYS. ing on the bank, and thence running by tJie river, or along the river, &c., does not restrict the grant to the bank of the stream, for the monument in such case is only referred to as giving the direction of the lines to the river, and not as restricting the boundary on the river bank. {Id.) So, a boundary line running from a post on the north bank of a creek, " thence down the same and along the several meanders thereof to the place of beginning," or " from a stake standing on the bank of a river, thence running along the river as it winds and turns to the place of beginning," which is also on the bank, includes the bed of the stream to the centre. {Seneca Nation, v. Knight, 23 N. Y. R. 498 ; Luce V. Carley, 24 Wend. 451 ; Jackson v. Louw, 12 John. 252.) But there can be no doubt of the right of the general owner of the bed of a river, and of the adjoining lands, so to limit or restrict his conveyance of the one, as not to divest himself of his property in the other. He may sell the adjoining land and reserve to himself the bed of the stream ; or he may convey the bed of the stream separate from the land which bounds it. (3 Kent. 434; Child v. Starr, 4 Hill, 369; Hale's De Jure Maris. ) Thus, if the boundary is described as extend- ing to the shore, or bank, or margin, or to high water mark, the bed of the stream will not be included. {Child V. Starr, 4 Hill, 369 ; Halsey v. McCormick, 13 i7. T. R. 296.) So, if the grantor, after giving the lines to the river, bound his land by the bank of the river, or describe his lines as lunning along the bank or shore, or margin of the river, he shows a clear intention' of not carrying the grant to the center of the stream. {Id.) Thus, where the boundary was "to the Genesee river, thence northwardly along the shore of said river to Buffalo street," it was held that no part DIFFERENT KINDS OF HIGHWAYS. 45 of the bed of the river passed. {CJiild v. Starr, supra.) So where the boundary was described as running to the shore of Gamaliel' s neck, and thence by the shore, etc. , the bed of the stream was not included. {Storer V. Freeman, 6 Mass. 435.) So, a deed bounding the premises on the west by the east bank of a river entirely excludes the river. {Kingman v. Sparrow, 12 Barh. 201.) But where the boundary is fixed at the bank of a stream above tide water, the grant exteiids to low water mark. {Halsey v. McCormicJc, 13 i\^. r. B. 296.) 9. What Rivers are Navigable.. We have before remarked that grants of land bounded on navigable rivers only extend to high water mark ; while those bounded by rivers not navigable, in the absence of express words of limitation, extend to the thread or center of the stream. It is important in this connection to inquire what rivers are regarded as navigable. By the common law of England those rivers are navigable in which the tide flows and reflows ; all others are not navigable. This distinction is only applied in determining the ownership of the bed of the stream, and has no reference to the right to use the stream for purpose of passage or transportation ; the rule in that respect being that the public have not only a right to all tide waters, but also a right of way or easement paramount to the rights of the riparian owners, in aU rivers which, though not tidal or navigable in the sense above stated, are nevertheless navigable in fact. {Mor- gan V. King, 35 N'. T. JR. 458 ; Hale, De Jure Maris ; Kx parte Jennings, 6 Gow. 518.) It has been a question of much doubt in the courts of our State, as well as in the courts of other states, 46 THE LAW OF HIGHWAYS. whether this common law definition of navigable and innavigable rivers was applicable to this country. On the one hand it has been held that it is applicable, and that the State owns the bed of those rivers only where the tide ebbs and flows ; while on the other hand it has been held by equally high autliority that the definition is not applicable, and that the State is the owner of the beds of all rivers that are navigable i)ifacf. As long ago as 18U5, in Palmer v. Mulligan (3 Caines, 308), which was an action on the case for erecting and continuing a nuisance to the plaintiff' s mills and dams, situated upon the Hudson, at Still- water, Kent, Ch. J., who dissented from the majority of tuf^ court, said: "The Hudson, at Stillwater, is a fresh water river, not navigable in the common law sense of the term, for the tide does not ebb and flow at that place." "The Hudson, at Stillwater, is capable of being held and enjoyed as private property, but it is, no th withstanding, to be deemed a public highway for public uses, such as that of rafting lumber, to which purpose it has heretofore been, and still is bene- ficially subservient." With this opinion Tho.mpsox, J. agreed. Spencek, J., who delivered the controlling opinion, thought that the common law doctrine was not applicable, and that the bed of the river belonged to the State, but did not base his decision on that ques- tion. Again in Shaw v. Crawford (10 John. 236), tlie court acknowledged the definition was applicable. So in t\\.& People Y. Piatt (17 JoJm. 195), which was an indictment against the defendent for obstructing the passage of salmon up the river Saranac, Spencer, Ch. J., after citing largely from Lord Hale's De Jure Maris and other English authorities, to show that only tidal waters are navigable, says : "I cannot discover that these principles and distinctions have ever been CONCERNING THE EEE IN HIGHWAYS". 47 denied or overruled ; and I venture to say that they are of indisputable authority." And in Hooker v. Cwmmings (20 John. 90), the same learned judge held that rivers are to be considered navigable as far as the sea ebbs and flows. Again in Ex parte Jennings (6 Cow. 518), which was a motion for a mandamus to compel the C^nal Appraisers to appraise the damages which Jennings — who was the owner of lands border- ing on the Chittenango creek — had sustained, by trea- son of the diversion of the waters of said creek into the Erie canal above the lands of the relator, the court remarked, "By the term navigable river, the law does not mean such as is navigable in common parlance.' The smallest creek may be so to a certain extent, as well as the largest river, without being legally a navi- gable stream. The term has, in law, a technical mean- ing ; and applies to all streams, rivers or arms of the sea, where the tide ebbs and flows. A public grant, bounded on the margin of such waters, extends, by construction, no farther than high water mark, and leaves as to the rest, an absolute proprietary interest in the public. Above the flow of the tide, the river becomes private, either absolutely so, or subject to the public right of way, accordingly as it is a small or a large stream." The next case, in point of time, in this State was that of The Canal Commissioner ers v. The People, (5 Wend. 423.) George Tibbits claimed to be the owner of a valuable waterfall in the middle sprout of the Mo- hawk river, which, in consequence of the erection of the State dam, above Troy, was overflowed and rendered useless. The Canal Appraisers refused to appraise the damages, on the ground assumed by them that he had not showed title to the premises ; the Supreme Court issued a mandamus, and the Appraisers sued out a 48 THE LAW OF HIGHWAYS. writ of error. The Court for the Correction of EiTors, by a vote of twenty to five, decided that from the facts in the case it did not appear that the middle spront was embraced within the grant of the manor of Rens- selaerwyck by title under which the relator claimed the premises. The question, therefore, as to the appli- cation of the common law definition of navigable rivers, to our own country, did not arise directly ; yet Chan- cellor Walworth and Senator Allen maintained that the rule of the common law, in that regard, prevailed here, while Senator Beaidsley held otherwise. In Yarick v. Smith (5 Paige, 137), Vice- Chancellor Wil- liams held that it might be regarded as settled in this State that grants of land, bounded on rivers and streams above tide water, extend usque ad filum aqum. The case of Tibbits was again before the Court of Errors, in 1836, and is reported in 17 Wend. 571. The head note, which, it is claimed, expresses all the court court actually decided, is in these words : "If, in the improvement of the navigation of a public river the waters of a tributary stream are so much raised as to destroy a valuable mill site situate thereon, and the stream be generally navigable, although not so at the particular locality of the mill site, the owner is not entitled to damages within the provisions of the canal laws directing compensation to be made for private property taken for public use." Chancellor Wal- worth regarded the common law rule as applicable ; but Senators Beardsley and Tracy, who wrote opinions, were of different mind. The same question had been ably examined by Sutherland. J. , when the case was before the Supreme Court, and his conclusion was that the common law rule was the law in this State. (13 Wend. 365. 'j In Yarick v. Smith (9 Paige, 547), the Vice-Chan- DIFFERENT KINDS OF HIGHWAYS. 49 cellor of the fifth circuit was of opinion that the con- struction of the term " navigable river" had long been well settled, and that it meant a river where the tide ebbed and flowed. He was also of opinion that the law, as laid down in the above case of Tibbitts (17 Wend.), was restricted to and applicable only to the Mohawk river. The next case worthy of attention, is that of Starr V. OMld (20 Wend. 149). The action was ejectment, and the question was, whether a grant of land on the Genesee river extending to the river, and thence along the shore of said river, included the stream to the cen- ter. Judge CowEN, in the opinion of the court, reit- erated the doctrine advanced by him in the note to Ex parte Jennings (6 Cow. 518), that in all grants bounded on fresh water rivers, the soil thereof passes, unless expressly excluded by the grant. Judge Bkonson, in his dissenting opinion, controverted this doctrine, and held, that all rivers, navigable in fact, belonged to the public. The case of The Commissioners of the Canal Fund V. Kempshall (26 Wend. 404), is a leading case, and was thought by Chancellor Walworth (4 Hill, 372), to settle the question in this State. It was an action to recover damages for the obstruction, by the agents of the State, of the waters of the Genesee river at Rochester. The head note is in these words : ' ' Fresh water rivers, to the middle of the stream, belong to the owners of the adjacent banks. If navigable, the right of the owners is subject to the servitude of the public interest for passage or navigation. The owners, how- ever, are entitled to the usufruct of the waters flowing in the rivers, as appurtenant to the fee of the adjoin- ing banks, and for an interruption in the enjoyment of their privileges in that respect, in consequence of 5 60 THE LAW OF HIGHWAYS. public improvements made by the State, are entitled to compensation for damages sustained." Senator Verplank, who delivered the only opinion reported, insisted that the principle adopted here did not conilict with the decision in The Canal Appraisers v. TibbitSy (17 Wend, supra), as there were facts and circum- stances in that case, upon which the decision may well be sustained, which did not exist in the case before him. In Child V. Starr, which was brought up to the Court of Errors, and is reported in 4 Hill, 369, the question did not properly arise ; but it was thought by the Chancellor that the above case of Kempshall had settled the rule here. The next case was that of The People v. Tibhetts, (19 N. Y. R. 623), which was an action for rent reserved by a lease of one-half the surplus waters of the Hudson" river at the Troy dam, executed by the Canal Commissioners to George Tib- bits, the father of the defendant. The defense was, that George Tibbits, being owner of the lands border- ing the river when the lease was executed, was owner of the surplus water mentioned ; and, hence, the lease was without consideration. The court held, that the defendant, being in possession as tenant, could not contest the title of his landlord. The question as to what shall constitute a river navigable, was discussed, and this proposition announced. ' ' A river is consid- ered as an arm of the sea, and, as such, navigable, so far as the tide rises and falls. That is the technical rule of early establishment, and of unifomi and con- stant adherence." But the case being decided on other points, the remark is, of ■ course, obiter. The last case, where the question was directly at 'issue, is that of The People v. Canal Appraisers (33 N. Y. R. 461). This was a proceeding by mandamus DIFFERENT KINDS OF HIGHWAYS. Si to compel the Canal Appraisers to assess the damag^ which the relator had sustained by the use and diver- sion of the waters of the Mohawk river, at Little Falls, for the purpose of the Erie canal. It was decided that the Mohawk is a navigable stream ; and that the title to the bed of the river is in the people of the State. Davis, J., who delivered the opinion of the court, after a most elaborate examination of. the English and American cases on the subject, concluded that the common law rules, determining what streams are navigable, are not applicable to this country. But, with all deference to the learned judge, we must re- gard the decision as restricted and applicable only to the Mohawk. That the Mohawk is not subject to the common law rule, was long before decided by the Court of Errors, in the case of TibMtts (17 Wend. 571). In Morgan v. King (35 N. T. B. 454), the cortimon law rule was acknowledged. The action was brought for obstructing the passage of saw logs .of the plaintiff, in floating down the Racket river, near Potsdam. In delivering the opinion of the court. Smith, J. re- marked: "By the common law of England, those rivers are navigable where the tide flows and reflows ; all others are not navigable. Upon this distinction is based a very important rule relating to the ownership of the bed of the stream and the right of Ashing in its waters, to wit : That navigable or tidal rivers, so far as the tide ebbs and flows in them, belong to the King ; and rivers not navigable, that is fresh water rivers, belong to the owner of the adjacent soil." But as the Racket river was decided not to be navigable in fact, the question as to the application of this conlmon law rule did not arise. Such is the history of the decisions, in this State, on this interesting and important subject. References to 52 THE LAW OF HIGHWAYS. the decisions of the courts of other States will be found in the note to page 427, of Kent's Commentaries, in the note to Bx parte Jennings (6 Cow. 518), and in the opinion of Judge Da vies in The People v. Canal Ap- praisers, supra. It will be observed that the current of the decisions is in favor of the common law rule, and it is to be hoped that it may ultimately be firmly established as the law of the State. The learned com- mentator on American law, after noticing the decisions in other States confirming the common law doctrine as stated above, says : These decisions in the courts of Illinois and Mississippi, are highly creditable to theii' learning and firmness ; and it is consoling to meet with such frank and manly support of the binding force of the common law on which American jurisprudence essentially rests. (3 Kent. 428, nA)te.) HIGHWAYS BY DEDICATION. 5'S CHAPTER III. HIGHWAYS BY DEDICATION. 1. Definition and nature. 2. Wlio may make dedication. 3. How dedication proved. 4. How presumDtion of dedication rebut- ted. 5. Principles deduced from tlie decisions. 6. How accepted by the public. 7. Dedication of bridges. 8. Effect of dedication. 1. Definition and Nature. Highways usually originate either by dedication or by the acts of the proper public authorities, in pur- suance of the statute. We will consider in this chap- ter some of the general principles relating to high- ways by dedication. Dedication may be defined to be an act by which the owner of the fee gives to the pub- lic an easement in his land. A road or street may become a public highway in consequence of a dedica- tion of it by the owner of the soil to the public use. The only difficulty is in ascertaining what will be suffi- cient to constitute such a dedication. It is not essen- tial that the dedication be in writing, but it may be done by an act in pais, as well as by deed. {Hunter V. Trustees of Sandy Hill, 6 Hill, 407.) It must originate in the voluntary donation of the owner of the land, and be completed by the acceptance of the pub- lic. (GMld V. Chappell, 9 N. T. B. 257.) The effect of a dedication is not to deprive a party of his land, but to estop him, while the dedication continues in force, from asserting that right of exclusive possesion and enjoyment, which the owner of property ordi- 54 THE LAW OF HIGHWAYS. narily has. He retains a right to use the land in any way compatible with the use to which it is dedicated. {Id. Post V. Pearsall, 22 Wend. 451 ; Kelsey v. King, 33 How. 39.) The public acquire no more than the ordinary ease- ment of passage and repassage ovt^r the surface of the soil, and the rights and privileges incident thereto. {Kelsey v. King, 33 How. 39, and cases cited.) A strip of land adjoining a public highway, which remains uninclosed, is deemed 1o be dedicated to pub- lic use. {Cleveland \. Cleveland, 12 Wei^d. 172.) 2. Who mat Make Dedication. In respect to who may dedicate lands to public uses, the rule seems to be the same as in making grants of any kind. It can only be done by one having the fee in the land. ( Ward v. Davis, 3 Sandf. 502.) It can- not be done by a trespasser or tenant. ( WasJib. Ease. 180.) Thus, where land as far back as living memory could go, had been used in all respects as a public street, yet, having been under lease for ninety-nine years, which had but just expired, Lord Chief Justice Abbott held that the pennission of the tenant could not bind the landlord, and that there was no dedica- tion unless it was proved to have been made prior to the giving of the lease. ( Wood v. Veal, f) Barn. & Aid. 454.) But it is decided that if there has been a a frequent change of tenants during the period when the public have had the use of the way, or if the land- lord be proved to have had express notice of the pub- lic being in the occupation of the way, his consent, as ovnier of the fee, must be implied, and the dedication will be complete. {Rex. v. Barr, 4 Camph. 16.) But under the statute of this State declaring that HIGHWAYS BY DEDICATION. 55 " all roads not recorded whicli have been, or shall have been, used as public highways for twenty years or more shall be deemed public highways " {1 H. S. 521 , § 100), it has been held that the intention of the owner of the land is not material, and that such a user of lands for that period makes it a public highway under the statute, though the owner be a lunatic, an infant, or married woman, and has no knowledge thereof during the entire time. ( Devenpecic v. Lam- bert, 44 Barb. 599, per Balcom, J.) The above was, however, wholly obiter and contrary to the whole current of decisions both in this country and in England. It is not necessary that there should be a grantee, as in the case of an actual grant, and a dedication will be valid without any specific grantee in esse at^the time, to whom the fee could be granted. The public is an ever-existing grantee, capable of taking a dedica- tion for public us>-s. ( Post v. Pear sail, 22 Wend. 435 ; Hunter v. Trustees, &c., 6 Hill, 407.) 3. How Dedication Proved. A dedication is supposed to take place through a mutual agreement between the owner of the land and the public ; therefore the consent of both these parties must be expressly or impliedly given. We will pro- ceed to consider, 1. "What is sufiicient evidence of an intention to dedicate on the part of the owner of the soil ; and 2. How far the consent of the public is requisite. To constitute a dedication of land to public use, there must be an intention to do it on the part of the owner, and such intention must be clearly and satis- factorily proved. It may be manifested by writing, 56 THE LAW OF HIGHWAYS. declai-ations or by acts. As to what acts or omissions on the part of the owner are sufficient to constitute this dedication, is a question upon which no certain rules can be laid down as applicable to every case. It is the province of the jury to decide from the cir- cumstances of each particular case, whether there is sufficient evidence of an intention on the part of the owner to dedicate the land to the public use as a high- way. {Gould V. Glass, 19 Barh. 171, 195.) A dedi- cation is not required to be in writing, and when ac- cepted is irrevocable. {Cook v. Harris, 61 iV. Y. 448.) Where the acts by the owner are not so specific in their nature, or so determinate in their object, as clearly to prove his intention that the public sh(mld acquire a right of way, they are frequently aided by collateral evidence ; and the circumstances of most common occurrence, which is considered sufficient to support the claim of the public, is the length of time during which they have had the uninterrupted use and enjoyment of their privilege. But, of course, the weight of this as of any other evidence, must depend, in each instance, on the particular feature of the case. Nor has any certain period been prescribed as neces- sary to support a dedication. In some of the English cases, six years ; in others, eight and twelve years have been held sufficient, while in another case, nine- teen years was held insufficient. The true principle to be deduced from the authorities is, that if there be no other evidence of a grant or dedication, than the presumption arising from the fact of acquiescence on the part of the owner, in the free use and enjoyment of the way as a public road, the period of twenty years, applicable to incorporal rights, would be required, as being the usual period of limi- tation. (3 Kent, 451 ; Gould v. Glass, supra ; Mc- IIIGHWATS BY DEDICATION. 57 Ifanus V. Butler, 51 Barb. 436.) But if there were clear, uneciuivocal and decisive acts of the owner, amounting to an explicit manifestation of his will to make a permanent abandonment and dedication of the land, those acts would be sufficient to establish the dedication within any intermediate period, and with- out any deed or other writing. (3 Kent, 451 / Irwin V. Dixon, 9 How. [U. S.J 30.) Thus, if a man buUds a double row of houses, opening into an ancient street, at each end, making a street, and sells or lets the houses, that is instantly a highway. {Woodyer v. Hadden, 5 Taunt. 137.) So, if one make a plan of his land in a city, with certain streets laid down be- tween certain lots, and sells the lots accordingly, a dedication of such streets will be presumed. And, more particularly so, if the public are allowed to occupy the streets accordingly. But a mere survey of such streets, without selling the contiguous lots or letting the streets be occupied, is not enough. {Irwin V. Dixon, 9 How. [W. S.^Sl; Clements v. West Troy, 16 Barb. 251.) In the case of St. John Lade v. Shepherd, (2 Stra. 1004), it appeared that the owner of the property had some years before built a street upon it, which had ever since been used as a highway, and the court held it a dedication. In Rex v. Lloyd (1 Campb. 260), the locus in quo was a narrow, oblong passage leading from one part of the street to another, without having any outlet elsewhere ; the houses all the way round had once belonged to the same individual, and the passage had been opened as far back as could be remembered.' Lord Ellenbokough observed : "If the owner Of the soil throws open a passage, and neither marks, by any visible distinction, that he means to preserve all his rights over it, nor excludes persons from passing 58 THE LAW OF HIGHWAYS. through it by positive prohibition, he shall be pre- sumed to have dedicated it to the public. Although the passage in question was originally intended only for private convenience, the public are not now to be excluded from it, after being allowed to use it so long without any interruption." In the well known case of Rugby Charity v. Merryweather (11 JEast, 375, note), the period of eight years was held to be a suffi- cient length of time, whereon to presume a dedication. Lord Kewton said : "It is now too late to assert the right; for this is quite a sufficient time of presuming a dedication of the way to the public. In a great case, which was much contested six years was held suflBl- cient." This decision has, however, been much ques- tioned in subsequent cases. In the case of Rex v. Hudson ( 2 Stra. 909), user for four years was considered too short a period. In Woodyer v. Hadden (5 Taunt. 125), the language of the court was that time was a material ingredient in the foundation of the presumption ; and nineteen years' use of a street for a public highway was held not to be clear and decisive, and, therefore, not sufficient evidence of a dedication of it to the public. But in the case of Regina v. Patrie (30 Eng. Law and, Eq. R. 207), the court go so far as to say, that the enjoyment and user of away by the public, with circumstances of publicity, for a period of six years, is evidn-nce from which the assent of the owner, whoever he may be, is prima facie to be inferred. In a recent Ameiican case it was held that, in the absence of clear and unequivo- cal manifestation of an intention to dedicate, a dedica- tion would not be presumed, until after the lapfe of twenty years' uninterrupted user, and this is the view generally taken by the courts of this country. {Hoole v. Attorney-General, 22 Ala. 190.) HIGHWAYS BY DEDICATION. 59 In Colden v. Thurher (2 John. 424), twelve years' use was held prima f&cie evidence that the road had been properly laid ont. The failure by the commis- sioners of highways to cause a public highway, long in use, to be opened to its full statute width for a period of thirty years, does not operate to extinguish the rights of the public to the parcels not so opened and worked. {Walker v. Caywood, 31 N. T. R. 51.) In Denning v. Roome (6 Wend. 651), where a street in the city of New York was widened from forty to sixty feet, and accordingly used by the public for nineteen years, although no legal measure had been taken to divest the title of the owner, it was held, that the non- claim of the owner for such length of time, connected with his acts, such as the payment of an assessment for paving the street to the full width, and the recog- nition of the appropriation of the twenty fef't, were sufficient to establish the right of the public to the use , of the street to the full width of sixty feet. So, where the owner of lands in a city make a maj) or plan of his land, with certain streets laid down between certain lots, and sells the lots accordingly, a dedication, as between the grantor and grantee, will be presumed, although no part of such streets have been adopted by the public authorities. {Bissell v. N. T. Central Railroad Co., 23 N. T. R. 61; Matter of TMrty-second street, 19 Wend. 128 ; Matter of Twen- ty-ninth street, 1 Hill, 189 ; Wyman v. Mayor of N. T., 11 Wend. 486 ; De Witt v.' Village of Ithaca, 15 Hun, 568.) But the mere laying down of streets or squares upon the plat of a contemplated city or vil- lage, even though the same may be publicly exhibited or declared by the proprietors thereof, does not con- stitute a dedication of them to public use ; there must be a sale of some of these lots, having reference to such 60 THE LAW OP HIGHWAYS. streets or squares, and some adoption thereof by the public, as such, in order to create a dedication of them to the public. {Thompson's Pro. Rem. and cases.) A map filed as a plan of future improvements does not establish a street. {In re Bhinelander, 68 N. T. R. 105.) So, where adjoining proprietors, for their own convenience laid out a lane twenty feet wide on the boundary line, and the public used it for about thirty years, it was held to be a dedication. ( Wiggins v. Tallmadge, 11 Barb. 457 ; Walker v. Caywood, Supra. ) Where the only evidence of dedication is a map made in 1826, on which the premises were marked as part of a street, but there was no proof of an acceptance by the city, or of ownership in the parties tiling the map,, held no dedication. {McMannis v. Butler^ 49 Barhy 176.) 4. How Presumption of Dedication May be Rebutted. It seems, however, to be agreed, both by the English courts and the courts of this country, that the owner may negative any presumption of dedication, by plac- ing at the entrance of the passage a bar, post, or gate, or notice of "no thoroughfare" or "private passage," or by other similar means. Thus, where a bar had been placed across a newly finished street, which bar, however, was soon knocked down, and the public used the street for some years as a thoroughfare, it was contended that a dedication, at least as far as a right of foot path, had been proved. Mr. Justice Heath held, that the putting up cf the bar rebutted the presumption of a dedication to the public ; that the dedication contended for must have been made openly, and with a deliberate pui"pose, and the verdict negatived the right of way. {Roberts v. Karr, 1 HIGHWAYS BY DEDICATION. 61 Clamph. 262, note.) So, where it appeared that a gate had been once erected across the locus in quo, but, that for twelve years, the public had used a way over the loeus in quo, there being no gate during that period, Mr. Sergeant Marshall directed the jury to find against the right of way, and the court of King's Bench sustained his opinion. {LetJibridge v. Winter, 1 Gaifrupb. 263, note.) So, where a manufacturing com- pany opened a street on their own premises, and built houses on each side and wrought the way as a street, and the houses were occupied by their operatives ; and it appeared that they had posted up at the open- ing of the passage, "private way," it was held to be such only, and the city was not responsible to a per- son who, in passing through it, sustained injury. {Durgin v. Lowell, 3 Allen, 898. ) So, where a land owner, in the village of Newburgh, laid out a strip of land of the ordinary width of a street, from one public street to another, and wrought it, at great expense, into the condition of a street fit for public use ; when he began to work, he had gates at each end ; he took down one as he progressed, and in the end removed the other ; and while he was working it people on foot and in vehicles passed over it. After it was completed, he replaced the gates. A citizen of the town insisted on passing over it, on the ground that it had been ded- icated to public use. The court held that it was not a dedicated highway. {Carpenter v. Gwynn, 35 Barb. 395, 406.) Dedication and acceptance by the public authorities create a highway, without regard to the length of time it may have been used. Neither recognition nor ac- quiescence can operate by way of estoppel, untU the expiration of twenty years from the commencement of the user. {Chapman v. Swan, 65 Ba^h. 210.) 62 the law of highavays. 5. Principles Deditced from the Decisions. We see, therefore, that the question of dedication, as to the owner of the land is nothing more nor less than a question as to the intention of the supposed donor of the right of way. The owner's acts and declarations must be deliberate, unequivocal and de- cisive, manifesting a positive and unmistakable inten- tion to permanently abandon his property to the spec- ific public use ; or else that there must have been a user of such length of time, by the public as will raise the presumption of acquiesence on the part of such owner, in the free use and enjoyment of the way as a public road ; and that in the absence of other evidence of a grant or dedication, such user must have been for the period of twenty years ; and further, that is a question for the. jury to decide, on the evidence of each particular case, whether the facts show an inten- tion to dedicate the locus in qtoo to public use. The intention is the point where the matter hinges ; and it follows, that whenever the owner has done any act in- consistent with the public right of passage, or where any other circumstances occur which negative the im- plication of his assent, the dedication cannot be in- ferred. Whether a public highway has been estab- lished by dedication or prescription is a matter of fact for the jury. {McCarty v. L. S. and M. S. B. H. Co., T6JV. T. B. 592.) 6. How Accepted by the Public. To render a dedication complete or effectual, it must be accepted by the public ; and before it has been ac- cepted the owner is not precluded from revoking it at any time, {HoMane v. Trustees, &c., 21 N. Y. R. 478 ; HIGHWAYS BY DEDICATION. 63 WoMer v. Buffalo and State Line R. B. Co., 46 N. Y. H. 686 ; Niagara Falls Susp. B. Co. v. Bachman, 66 JSf. T. R. 261.) What acts on the part of the public will amount to an acceptance, so as to charge the town with the reparation, is not clearly settled by the courts. The common law mode of indicating an acceptance by the public of a dedication is by a user of sufficient length to evince such acceptance — the length of time depending, of course, upon the circumstances of each case. (^ Washb. Ease. 139 ; Lade v. Shepherd, 5 Strange, 1004.) But courts of high authority, both in this State and other States, influenced by local statutes, have held that mere user of streets or ways by the public does not constitute an acceptance or adoption of them as highways by dedication, unless there shall have been a location of the same, as public ways, by the proper officers of the town, city or county author- ized to make sucli location. Thus in Underwood v. Stuyvesant (19 John. 186), Petrus Stuyvesant had surveyed and laid out a tract of land within the city of New York into city lots and streets, and had sold or leased part of the lots with reference to the survey. Mr. Justice Platt, in deliv- ering the opinion of the court, said : " We must intend that every person knew that these streets could not be established as public streets of the city unless they were sanctioned by the corporation, or other public agents having such power." So in the case of Cle- ments V. West Troy, the proprietors of that village laid out the same by a plan, upon which an alley was laid down, and house-lots were conveyed bounded on the alley. The court said : "As between the original proprietors and those to whom they conveyed, this act of the proprietors secured a right of way. But the alley thus designated, and in respect to' which the pur- 64 THE LAW OF HIGHWAYS. chasers liad acquired an indefeasible right of way, did not thereby become a public highway. The dedication must be accepted. The highway must be laid out. Until that is done, the alley would remain the prop- erty of the original proprietors, subject to the right of way in those who had taken the deeds of lots bounded upon the alley." (16 Barb. 251 ; see also Child v. CJiappell, 9 N. Y. R. 257, per Mukse, J., and to the contrary, Clements v. West Troy, 10 How. 199.) In the case of the Trustees, &c. v. Otis (37 Barb. 50), it was held that a way may be dedicated, and will become a highway when laid out as such by the con- stituted authorities, or by an acceptance of the dedi- cation by those authorized to act for the public. But it is not competent for an individual, by a simple act of dedication, to impose upon the public the burden and responsibility of maintaining a highway. Nor will the mere use of the way by the public make an acceptance, if for a less time than twenty years. Nor could the public prosecute the one who had dedicated it, for having shut it up before the same was accepted. And in the case of Oswego v. The Oswego Canal Company, (6 N. T. B. 257), the Court of Appeals de- cided that streets and roads dedicated by individuals to public use, but not adojjted by the local public authorities, or declared highways by statute, are not highways within the meaning of the highway act ; and there is no law by which any one can be compelled to keep them in repair. On the other hand, it was held by Mr. Justice Weight, in Clements v. West Troy (10 How. 199), that user by the public was suflBcient evidence of an accept- ance of a dedication without any act of affirmance by any local officer or body. So, in Bissell v. JV. Y. Cent. Railroad (26 Barb. 634), the court held, that the ac- HIGHWAYS BY DEDICATION. 65 ceptance must be by some express corporate or official act, or hy user, distinct and unequivocal, of sucb street as a public street or highway ; and when the same case was before the Court of Appeals (23 N. Y. a.), the same proposition was affirmed by Masoi^, J., who delivered the opinion of the court, although it was admitted that the question did not arise in the case. Again, it was held in Holdane v. Trustee, &c. (23 Barh. 123), by the other judges, against Steong, J., that a dedicated way may acquire the character and qualities of a highway, if it has been openly used as such, though there has been no formal act of accept- ance by the public authorities, and that it becomes a way for all persons. The same case came before the Court of Appeals in 1860, and is reported in 21 N. Y. M. 474 ; the court said, " It is not necessary that there should be any formal act of acceptance by the public authorities, but it may be indicated by common user, under circumstances showing a clear intent to accept and enjoy, as such, the easement proposed to be dedi- cated." All the judges concurred in affirming the judgment of the Supreme Court; Selden, J., with a protest against aiiy implication that a dedication can take effect without some public body to take, or with- out an acceptance to be proved by user or otherwise. The case of Oswego v. The Oswego Canal Go. was neither cited nor referred to. (See also Devenpeck v. Lambert, 44 Barb. 596.) Upon principle, it is difficult to see why a formal act of the public authorities, is requisite to affirm a dedication of a highway. All highways are for the benefit of the people at large, in whatever part of the State they may reside. And though each town is bound to rej)air its own ways, yet the burden is the same upon all other towns ; and there seems no reason why any one of 6 66 • THE LAW OF HIGHWAYS. them should be allowed a ceto as to the establishment of new ways, which in the very user thereof by the public, are evidenced to be of general advantage. If a way be voluntarily travelled by the people at large, it must be presumed to be beneficial to them ; if it be of benefit, the town should be charged with its repara- tion. The principle upon which the liability to repair highways is founded is, that the public shall be at the expense of keeping in good order their own ways. The highway officers are selected only as a means whereby that charge can be effected. Whenever a way has become a piiblic way then the town must repair it as the agent for the people. The intervention of the town is not required until after the public nature of the way is established. That is done through its adoption by, and as a necessary conse- quence, its utility to, the people at large. It has been held that an alley need not be accepted by the public to be deemed a thoroughfare. {Beck \. Carter^ 68 N. Y. R. 283.) 7. Dedication of Bridges. The general rules of dedication apply equally to highways and bridges ; there is, however, this distinc- tion between them. If a way be opened and dedicated to public use by the owner of lands, it is optional with the public to accept it by user, or not to accept it by non-user ; but if a private bridge be built in a high- way the passage over it is a matter of necessity, and not of choice. No one can traverse the highway with- out passing over the bridge ; and it follows, that its user by the public is no evidence of their consent to its erection, nor any criterion of its utility. But if a bridge be of public utility and be used by the public. HIGHWAYS BY DEDICATION. 67 they are obliged to repair it, though built by an indi- vidual for his private benefit ; it is otherwise, however, if built by him for his own benefit, and it is without public utility, though used by the public. And if a bridge built by an individual, and dedicated to the community, is not what it seems to be, but is of imperfect and inartificial construction, the pubKc may reject and indict it for a nuisance, after discovering the cheat, though their previous conduct might, under dif- ferent circumstances, have amounted to an acceptance. {Rexv. West Riding, 2 East. 342.) And if a bridge is thrown over a highway, and the public derive no benefit from it greater than they enjoyed before it was built, the builder is bound to repair it. {Dygertv. Schenck, 23 Wend. 446. See ante, page 11.) 8. Effect or Dedication. The effect of a dedication is not to deprive the owner of his land, but to estop him while the dedication con- tinues in force from asserting that right of exclusive possession and enjoyment which the owner of property ordinarily has. He retains a right to use the land for any and all purposes compatible with the use to which it is dedicated. {Hunter v. Trustees, &c., QHill. 407; Kelsey v. King, 33 How. 39.) In the case of an ordinary highway, all which the public acquire by a dedication is the right of passing and repassing over the surface of the soil, and such privileges as are incident thereto. All else remains in the original owner or his assigns, subject only to such easement. Every right of use and ownership, and every right of action for an interference with either which is not inconsistent with the free and common use of the highway, still belongs to the owner of the 68 THE LAW OF HIGHWAYS. soil. If the highway is closed or the public rights are relinquished, the land at once revests in full and entire dominion. {People v. Kerr, 27 N. T. R. 196 ; Kelsey V. King, 33 How. 39.) But this rule must be regarded as not strictly appli- cable to streets dedicated to public use in cities or large villages. As to such streets it is said, though not per haps directly decided, that whether they are acquired by grant, by dedication, or by purchase, they are sub- ject to those uses which are incident to streets in cities ; such as the construction of sewers and the laying of gas and water-pipes, without entitling the owner to additional compensation. {Milhau v. Sharp, 15 Barb. 210, per Edwards, J. ; People v. Kerr, 27 N. T. R. 202, per Emott, J.) But a different opinion was ex- pressed by Davies, C. J., in Kelsey v. King {33 How. 39), to the effect that there was no difference between highways in the country and streets in cities in this regard, and that the dedication of land for a public street in a city or village, carries with it no other right or privilege than the ordinary easement of travel. That case was decided on other grounds, but the learned judge gives an elaborate review and analysis of the authorities, to show that the sewer commissioners of the city of Brooklyn had no power to construct a sewer in a dedicated street of that city, without ac- quiring title and making compensation therefor to the owner of the fee, or without his consent. The owner may revoke the dedication at any time before it has been rendered complete by the acceptance of the public. {Holdane v. Trustees, &c. 21 If. T. R. 478.) But where the dedication has been once accepted by the public, it cannot be revoked while the street continues in use. {Adams v. Saratoga & Washington R. R. Co., 11 Barb. 414.) If an owner sells lots by DIFFERENT KINDS OF HIGHWAYS. 69 map, on wHch streets and public squares are desig- nated, the purchaser where the squares have been used as highways, may restrain a railroad from laying its track there without compensation. {Pratt v. Buffalo R. R. Co., 19 Hun, 30.) The dedication of land to the use of the public as a highway, does not preclude the owner of the fee sub- ject to the public easement from maintaining an action against a railroad company, which, without his con- sent, or an appraisal of his damages, enters upon and occupies such highway with the track of its road, ( Williams v. N. T. Central R. R. Co., 16 N. T. R. 97.) Upon the discontinuance or extinction of the highway, in any manner, the land revests in the owner of the fee discharged of the public easement or right of passage. 70 THE LAW OF HIGHWAYS. CHAPTER IV. COMMISSIONERS, THEIR POWERS AND DUTIES. ). Election and qualification. i. General powers and duties. 3. To cause roads to be ascertained, de- scribed and entered of record. t. To cause tbe highways and bridges to be kept in repair, 6. To divide the town into road districts and assign Inhabitants thereto. 6. To lay out and discontinue roads. 7 To account to town auditor. 8. In raising money for repairs of roads and bridges. 9. To appoint overseers, and to prose- cute them for neglect of duty. 10. Miscellaneous powers and duties. 11. Actisn by or against. 12. May consent to use of highway by railroad company. 18. May agree with plank-road or turn- pike company for use of highway. 14. Mandamus against. 15. Injunction against. 16. Fees of. 1. Election and Qualifications. By the Laws of 1866, chapter 30, it is provided that there shall be chosen, at the annual town meeting, in each town, one, two, or three commissioners of high- ways. The person or persons chosen for commission- ers must be electors of the town, since it is provided that no person shall be eligible to any town office un- less he shall be an elector of the town for which he shall be chosen, (1 H. S. 345.) To take oath.— Every person chosen to the office of commissioner of highways, before he enters on the duties of his office, and within ten days after he shall be notified of his election, shall take and subscribe before some justice of the peace, the oath of office prescribed in the sixth article (twelfth in the Constitu- tion of 1846) of the Constitution of this State, as C0MMIS8I0NEKS, THEIR POWEES AND DUTIES. 71 amended 1874. (1 H. S. 345.) The oath is in these words : " I do solemnly swear (or affirm, as the case may be) that I will support the Constitution of the United States, and the Constitution of the State of New York ; and that I will faithfully discharge the duties of the offices of commissioner of highways, according to best of my ability ; and I do further solemnly swear (or affirm) that I have not directly or Indirectly paid, offered or promised to pay, con- tributed, or offered or promised to contribute, any money or other valuable thing, as a consideration or reward for the giving or with- holding a vote at the election a: which I was elected to said office ; and have not made any promise to influence the giving or with- ■holding a vote at the election at which I was elected to said office; and have not made anv promise to influence the giving or withholding any such vote.'" (For form, see Appendix No. 1.) Such oath shall be administered without reward, and the justice before whom the same shall be taken, shall also, without reward, certify in writing the day and year when the same was taken, and shall deliver such certificate to the person by whom the oath was made. (1 Ji. S. 345.) The oath may also be sub- scribed and sworn before the town clerk of the town in which such officer shall be elected. Such oath shall be administered and ceriifled without fee or reward. (Laws 1838, Ch. 172.) (For form of certificate, see Appendix No. 2. ) Acts directing persons to adminis- ter oath of office to officers are held to be merely direc- tory. {Bx parte Heath, 3 Htll, 42.) The commissioner taking the oath, within eight days thereafter, shall cause the certificate to be filed in the office of the town clerk. (1 H. S. 345.) If any person chosen or appointed commissioner of highways shall not take and subscribe such oath, and cause the cer- tificate thereof to be filed as above required, such neg- lect shall be deemed a refusal to serve. {Id. ) But if he enter upon the duties of his- office before he shall 72 THE LAW OF HIGHWAYS. have taken such oath, he shall forfeit to the town the sum of fifty dollars. (1 R. S. 347.) Penalty for refusing to serve. — So, if any person chosen or appointed to the office of commissioner of highways shall refuse to serve, he shall forfeit to the town the sum of fifty dollars. {Id. ) Number and term of office. — The electors of each town shall have power at their annual town meeting, to determine, by resolution, whether there shall be chosen one or three highway commissioners, and the number so determined iipon shall be balloted for and chosen ; and if only one shall be determined upon and chosen, he shall possess all the powers and discharge all the duties of commissioners of highways as pre- scribed by law, and shall l)old his office for one year. And whenever three commissioners shall be chosen in any town, thpy shall be divided by lot by the canvass- ers, upon the result of the canvass, into three classes, to be numbered one, two and three ; the term of office of the first class shall be one year, of the second, two, and of the third, three ; and one commissioner only shall thereafter annually be elected in such town, who shall hold his office for three years, and until a suc- cessor shall be duly elected or appointed ; but in case any commissioner shall be elected to fill a vacancy, he shall hold the office only for the unexpired term which shall have become vacant ; and if two vacancies shall be required to be filled, the canvassers shall, after the canvass, determine by lot as aforesaid, the terms they shall respectively hold. (Laws of 1845, ch. 180, as amended by ch. 455, laws 1847.) Vacancy, liow filled. — And when any vacancy !?hall THEIR POWERS AND DUTIES. 73 happen by death, removal, resignation, neglect to qualify, or refusal to serve, it shall be supplied until the next succeeding annual town meeting by an appointment in writing, under the hands of any three justices of the peace, or two justices and the supervisor of the town. {Id. ; see form No. 8.) To administer oath. — And every commissioner of highway shall be authorized to administer oaths to any witnesses or juries, in proceedings which may be had by or before them. Number, Tiow changed. — And whenever any town shall have determined upon having three commission- ers, and shall dt^sire to return two or have but one, such town shall have the power so to do by a resolu- tion taken at an annual town meeting, and when such resolution shall have been adopted, no other commis- sioner shall be elected or appointed, until the term or terms of those in office at the time of adopting such resolution shall expire or become vacant ; and they shall have the power to act until their terms shall sev- erally become vacant or expire, as fully as if the three continued in office. (Laws of 1845, ch. 180, as amd. 1847, ch. 455.) A resolution, taken at an annual meet- ing, to change the number of commissioners, cannot be rescinded until the terms have expired, nor until noon. {People v. Sandman, 12 Hun, 165.) Appointment to fill vacancy. — In case of vacancy, if the commissioner is appointed, he holds to the next annual town meeting after his appointment ; but if he is elected, he holds for the unexpired term. Where two persons are appointed to fill vacancies in the office of commissioner of highways, without designating the class to which they shall respectively belong, the one 74 THE LAW OF HIGHWAYS. first named in the appointment is to be regarded as appointed to the first class. Where the commissioners of the first and third class — the one ^o serve one year and the one to serve three years — failed to qualify themselves, and the vacancies were filled by three jus- tices of the peace, by appointing two persons as such commissioners ; but the appointment failed to desig- nate the class of either of the persons so appointed, it was thought by the court that the person first named in the appointment should be considered as appointed for the first class, or for one year, and the other for the third class, to serve three years. {People v. Super- visors Richmond Co., 20 N. Y. R. 252.) Should there be a failure to elect commissioners at the annual town meeting, in consequence of a tie in the vote, and the meeting adjourn without making an election, it is competent for three justices of the town to appoint a suitable person to the office, who, and not a person subsequently elected at a special town meeting, is enti- tled to hold office. {People v. Van Home, 18 Wend. 515.) Ih give bond. — Every commissioner of highways hereafter to be elected or appointed, shall, before en- tering upon his duties, and within ten days after notice of his election or appointment, execute to the ^uper- visor of his town, a bond, with two sureties, to be ap- proved by the supervisor by an endorsement thereon, and filed vdth him, in the penal sum of one thousand dollars, conditioned that he will faithfulh'- discharge his duties as such commissioner, and within ten days after the expiration of liis term of (jffice, pay over to his successor, what money may be remaining in his hands as such commissioner, and render to such suc- cessor a true accoimt of all moneys received and ]jaid COMMISSIONERS, THEIR POWERS AND DUTIES. 75 out by him as such commissioner. (Laws 1845, chap. 180.) (For form of bond and endorsement, see Appen- dix Nos., 3-5.) In case of default on the part of the commissioner in the performance of his duties, the bond must be prosecuted in the name of the supervisor of the town. No authority is given to a commissioner to sue his pre- decessor on the bond. (See Fuller v. Fullerton, 14 Barh. 59 ; Jansen v. Ostrander, 1 Cow. 670 ; Armine V. Spencer, 4 Wend. 406.) The omission to execute and filf' the bond, does not render his official acts void, so as to make him a trespasser. (Foot v. Stiles, 57 N. T. 399.) When to meet. — It is the duty o"f the commissiouers of highways of each town to meet within eighteen days after they are chosen, at the place of town meeting, on such day as they shall agree upon, and afterwards at such other times and places at they shall think proper. (1 R. S. 505, § 20.) Where there is but one commissioner he should attend at the same place. The object of this meeting is to make the assessment for highway labor. They can adjourn to another place, or appoint a subsequent meeting. This section is direc- tory, and if they should omit a meeting within the eighteen days, according to the usual construction of such statutes, they could afterwards meet and their proceedings woiild not be void. As to their powers and dnties in making assessments for highway labor, see post, Ch. VI. ■Jiesignation.— Should any commissioner of high- ways desire to resign his office, he may give notice Of his intention so to do to any three justices of the peace of the town, who may, for sufficient cause shown to 76 THE LAW OF HIGHWAYS. them, accept the resignation. (1 H. S. 348.) It will be the. duty of the justices thereupon to appoint some proper person to fill the vacancy. (See form No. 7.) Sureties to the bond of the commissioners will be liable only for defaults of duty during the term for which they were chosen, at the time the obligation was entered into, and not for those under a re-appoint- ment. {Kingston Mutual Ins. Co. v. Clark, 33 Barb. 196.) 2. General Powers and Duties. The commissioners of highways 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 ascertained, described, and entered of record in the town clerk' s office. 4. To cause the highways, and the bridges which are or may be erected over streams intersecting highways, to be be kept in repair. 5. To divide their respective towns into so many road districts as they shall judge convenient, by writing under their hands, to be lodged with the town clerk, and by him to be entered in the town book ; such divi- sion to be made annually, if they shall think it neces- sary, and in all cases to be made at least ten days before the annual town meeting. THEIE POWERS AND DUTIES. 77 6. To assign to each of the said road districts such of the inhabitants liable to work on highways as they shall think proper, having regard to proximity of resi- dence as much as may be: protided, however, that whenever the commissioners of any town shall have neglected for the period of one year, at any time after any public road or highway shall have been laid out, and title thereto acquired by due process of law, to open or work the same, or any part thereof, and when- ever any number of inhabitants of any town, in or through which the said road has been laid out, shall have given ten days' notice to the commissioners of said town that they desire to apply the whole or any part of their highway labor to the working of said road, the said commissioners shall forthwith assign the said Inhabitants to such road, direct the highway labor, for which they are annually assessed, to be applied to the same, and cause the same to be worked and put in good order for vehicles and travellers within one year, under the direction of any of the said inhabitants whom such 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 current year to such inhabitants, as their annual highway tax, is not suffi- cient to put such road in good order, as aforesaid, then the said inhabitants may anticipate the whole or any part of the highway labor assessed, and to be assessed against them, for a period not exceeding three years ; but from no one of the districts into which the said town is divided shall more than one-half of its annual labor be taken and applied to any road not embraced in said district. (As amended 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 78 THE LAW OF HIGHWAYS. and work thereon, with such implements, carria.g-'S, cattle or sleds as the said commissioners or any or one of them shall direct. (1 Ji. S. 501, § 1.) The above statute imposes on the commissioners the duty of active oversight, constant diligence, and re- quires them to exercise a reasonable degree of watchful- ness in ascertaining from time to time the condition of of the highways and bridges and in preventing them from becoming dilapidated or dangerous. {Bostwick V. Barlow, 14 Hun, 177.) Commissioners are to act as inspectors of plank roaris (Laws 1873, chap. 440, as amended), and as water com- missioners (Laws 1871, ch. 303, § 16). They are also authorized to lay out the unexpended highway labor on the sidewalks (Laws 1880, ch. 306). Special com- missioners have an implied authority to do all the several acts and duties connected with their position. {Odell V. Be Witt, 53 N. Y. R. 643.) Care and superintendence. — The commissioners shall have the care and superintendence of the highways and bridges in their town. They are superior to the over- seers of highways, and have the general control and direction of them in their official acts. All the powers of the overseers must, therefore, be taken to be subor- dinate 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 overseers have no concern with bridges erected over streams, except so far as they are directed generally to execute the orders of the commis- sioners. {Bartlett v. Crozifr, 17 John. 447, per Kent, Chancellor.) It must be remembered that the term COMMISSIONERS, THEIR POWERS AND DUTIES. 79 road is used in our statutes synonomously with high- ways. (9 John. 349.) To direct repairs. — It is made the duty of commis- sioners to give to the overseers directions for the repair of roads and bridges, and as to the manner in which such repair shall be done— as for instance, how to grade, drain, or level the roads, or how a bridge shall be repaired ; and it is the duty of overseers to obey such instructions. {Bartlett v. Crozier, supra. ) If an overseer of highways shall refuse or neglect to perform any of the duties enjoined on him by the commission- ers, he shall forfeit the sum of ten dollars for each refusal or neglect, to be sued for by the commissioners, and to be by them applied in making and improving the roads and bridges in the town. (1 H. S. 504.) An overseer, is liable for not removing obstructions in the highway, although not specially required by the com- missioners. {McFadden v. Kingsbury, 11 Wend. 667.) To regulate aud alter. — By the second subdivision, commissioners are authorized and it is made their duty to regulate the roads already laid out, and to alter such of them as they, or a majority of them, shall deem inconvenient. They may restore the boundaries and fences of a highway to its original lines ; and if it passes by or through an inconvenient place they may change its location ; but if in making such alteration it becomes necessary to take more or other land of the adjoining proprietor, compensation therefor must be made, the same as on the original location of roads. The power to alter is given for the purpose of making the road better by changing its site, and should only be exercised when the road is deemed "inconve- 80 THE LAW OF HIGHWAYS. nient." (See People v. Judges Courtland Co., 24 Wend. 493.) The commissioners have no power to make alterations in a public highway without the aid or intervention of a jury. (See Ch. IX. , postea. ) Under the above authority to regulate or alter roads, it seems that the commissioners may cut down and grade roads, although by so doing the adjoining premises would sustain indirect and consequential damages, provided the commissioners act in good faith and without malice. {RadcUff ex'rs v. Mayor of BrooMyn, 4 N. T. R. 195 See also, 14 Barb. 629.) See further as to the power and duties of commissioners in altering roads hereafter. 3. To Cause Eoads to be Ascertained, Described AND Entered of Record. The third subdivision of the above section, authoriz- ing highway commissioners 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 nsed for twenty years, but not recorded, to be ascer- tained, described and entered of record in the town clerk' s office, does not authorize the commissioners to say what was originally intended either by the owner of the soil, or any one else, in relation to the width or location of the road, any further than such intention has been manifested by permitting the way to be used. It is a power in relation to the road as it actually exists and has existed for the last twenty years. It does not authorize the commissioners to create or enlarge, but only to perpetuate the evidence of a pub- lic right. Both the extent and fact of dedication depend on the user ; and the public must take secun- dum forma doni, that is, according to the form of the COMMISSIONEBS, THEIR POWEKS AND DUTIES. 81 gift or dedication. {People v. Judges of Cortland Co., 24 Wend. 492, per Bkqnson, J,) Where the road has been originally laid out, it is of course competent for the commissioners to remove any encroachments thereon, if they proceed in the manner provided by statute, but before it can be determined whether there is an encroachment, the limits and boundaries must be ascertained and determined in some legal manner. The jury, which is called to de- termine the disputed question of an encroachment, has no power to determine the question of the width, and boundary of a highway, according to previous dedication or use which has been neither laid out nor ascertained and described by the commissioners of highways. That duty belongs exclusively to the com- missioners, and is to be performed by them is an en- tirely different manner. {Talmage v. Huntting, 29 If. Y. R. 447.) In ascertaining and describing a road which has not been laid out, but has become a highway merely by public use for twenty years, the powers of the high- way commissioners is, limited to ascertaining the boundaries of the road according to actual use for twenty yt^ars. They have no right in the exercise of this power, to alter and change the boundaries, with reference to present public convenience. {Id.) They have no power to ascertain, describe and enter of record a road dedicated to public use. {Com. of North Hempsted v. Judges of Queens Co., 17 Wend. 9.) Where the minutes of a road laid out in 1784 had been entered in the records^ of the town in 1790, but not signed by the commissioners, and the commission- ers of highways in 1805 ascertained the same road and caused a certificate thereof, with the description, to be 7 82 THE LAW OF HIGHWAYS. duly entered of record, and the road, after 1784, had been used as a public road for twelve years, the court held, in an action of trespass against a person for passing over it, that the use of the road as a public highway for twelve years, was prima fade evidence of its being laid out by proper authoritit^s, and that the acts of the commissioners, in 1805, duly constituted the road a public highway. {Colden v. Thurher, 2 John. 424.) So, where the owners of adjoining lands laid out a lane twenty feet wide on their boundary line, for their own convenience, and it was used by all persons hav- ing occasion to pass that way, for a great number of years, until 1826, when the commissioners of highways laid out and recorded a highway, referring to and con- nected with the lane, and giving egress through the lane to a road beyond ; and the public use of the lane was continued until 1848, when the commissioners de- scribed it and entered it upon the record as a highway, it was held to be a public highway, and that an owner of adjoining land was liable for an encroachment in extending his fences to the middle of it. ( Wiggins v. Tallmadge, 11 Barb. 457.) It seems that the uninterrupted use of land as a pub- lic highway for twenty years, according to the statute, entitles the commissioners to cause it to be ascertained, described and entered of record, without regard to the intention of the owner in permitting such use. {Deven- peck V. Lambert, 44 Barb. 599.) The proper method to ascertain, describe and enter of record a road, is to have a survey thereof made, and to draw and sign a certificate or order that such road is ascertained and described according to the sur- vey, giving the metes and bounds, and to have the said certificate or order and survey filed and recorded in COMMISSIONERS, THEIR POWERS AND DUTIES. 83 the town clerk' s office. (For forms of order or certifi- cate, see Appendix No. 9.) In ascertaining, describing and recording a road that has been used for twenty years, or that has been laid out but not sufficiently described, the commissioners perform little more than a ministerial duty, and no appeal lies from their proceeding. (People v. Judges of Cortland Co., 23 Wend. 491.) The proper remedy for a party aggrieved, would probably be certiorari. 4. To Cause the Bridges and Highways to be Kept in Repair. It is made the duty of the highway commissioners, by the fourth subdivision of the foregoing section, to cause the highways and the bridges which are or may be erected over streams intersecting highways, to be kept in repair. Primarily, it is the duty of the com- missioners to keep the highways and bridges in repair, either directly or by giving the necessary and proper directions to the overseers for such repara,tion. This is, in general, to be done through orders to the over- seers. It is also made the duty of overseers to repair and keep in order the highways within their several districts (1 H. S. 503), but they have nothing to do with bridges over streams, except so far as they are directed, generally, to execute the orders of the com- missioners. {Bartlettv. Crosier, 17 JoTin. 452.) This duty of keeping a bridge or a highway in re- pair extends, not merely to the floor of the bridge, or the bed of the road, but to proper guards or railing on their sides or borders, where necessary for the safety or protection of the public. (Hyatt v. Trustees of Rondout, 44 Barl. 391.) It is unquestionably true that the highway officers 84 THE LAW OP HIGHWAYS. of a town are not required to grade the whole space within the limits of the highway, so that a traveller can safely drive his carriage over every part of it. In ordinary cases, if they pro.vide a pathway for carriages of suitable width, and so deiine it as that there shall be no reasonable danger of its being mistaken, they will not be in fault if a traveller choses to try an ex- periment upon the part which is not thus prepared for travelling. {Ireland y, Oswego^ &c., PlanTcroad Co., 13 N. Y. R. 531, per Denio, C. J., and cases cited.) But where a road is so constructed or altered as to present, at one point, two paths, both of which exhibit the appearance of having been used by travellers, and one of them leads to a dangei*ous precipice, while the other is quite safe, it is the duty of those having charge of the road to indicate, in a manner not to be mistaken by day or night, that the unsafe path is to be avoided ; and, if it cannot be otherwise done, to put up such obstructions as will turn the traveller from the wrong track. {Id.) Lack of funds. — The duty to make repairs does not attach until funds are provided, or the authority to obtain them given. Thus, in an action brought against the commissioners of a town for damages sustained by reason of the breaking down of a bridge in such town. It appeared that one of the defendants had been noti- fied of the unsafe condition of the bridge a year or so previous to the accident ; and that prior to and at the time of the accident the commissioners had in their hands a suflicient amount of funds applicable to the reparation of bridges, to have repaired or rebuilt the bridge in question. But that there were several other bridges in the same town needing repairs or rebuild- ing, and the funds in the defendant's hands were COMMISSIOKEBS, THBIK POWERS AND DUTIES. 85 insufficient to repair or rebuild all the, bridges. Before the accident in question the defendants had procured materials for the construction of other bridges, the construction of which would have required more funds than the defendants had for such purpose. The court held that the commissioners had a discretion as to which of the bridges in the town they would repair, and that the action could not be sustained. {Oarling- house V. Jacobs, as explained in Hover v. BarJchoof, 44 N. j; R. 113.) Liability for^not repairing. — The question as to whether commissioners of highways are liable to an action at suit of an individual who has sustained dam- ages by reason of a clear neglect or omission on their part to cause the necessary repairs, is settled in Hover V. BarJchoof, supra; where Leonard, Comm'r, holds that commissioners of highways are liable to a private action for injuries caused by their neglect or omission to keep the highways in repair, if they have sufficient funds in hand, or ate clothed with the power to obtain the means for, repairing. (See People v. Town Audi- tors Little Valley, 75 N. T. 316.) Under the Kevised Statutes and the statute of 1853 (provided the defend- ants had the requisite funds, or could do it upon the credit of the town), it was their absolute and impera- tive duty to repair. (Opinion of Eabl, J. in same case.) Lack of notice of existence of defects does not relieve commissioners from liability to one who has been injured by reason of their failure to discover and repair the same, {BostwicJc v. Barlow, 14 Hun, 177.) As a question of pleading, the cases are not decisive whether an averment of the possession of funds should be made in the complaint, leaving it to the defendants to set up the want of them in the answer or not. 86 THE LAW OF HIGHWAYS. Adsit V. Brady (4 Hill. 630), strongly intimates that the general allegation of neglect and breach of duty is sufficient, and that the commissioners are presumed to have the means of performing a duty with which the statute charges them ; while Smith v. Wright (27 Barh. 621), holds that the complaint should contain a distinct averment of the possession of the requisite funds to make the repairs, and the want of it makes the complaint demurrable. If an individual can in any case sustain an action against commissioners for damages sustained by a road negligently and wrongfully left out of repair by them, it can only be when the damages sustained are special and peculiar to the plaintiff ; but it cannot be for such damages as are incident to all who travel on the road. {Cristman v. Paul, 16 How. 17.) But a private action would probably lie for an affirm- ative act by which somn injury is done, as for negli- gently and unskilfully constructing a bridge, or for the negligent execution of a duty resulting in the creation of a public nuisance. (See 16 N. T. Jt. 161.) The commissioners, however, may be indicted for neglecting to make the proper reparation. (Per Weight, J., in Oarlinghouse v. Jacobs, supra, and per Beardsley, J., in Wilson v. Mayor of New York, 1 Denio, 599 ; see also 11 Wend. 539.) But an indict- ment against them will not lie unless they have funds ; and an indictment against them is defective unless it avers that the defendants have funds or other means to defray the expenses of the repairs, or the power to obtain them. {People v. Adsit, 2 Hill, 619 ; 4 Hill, 630; Hover v. Barlchoff, 44 N. Y. R. 113.) Liability of towns. — A town is not liable to a civil action in any event, for an injury occasioned by their COMMISSIONEKS, THEIE POWERS AND DUTIES. 87 suffering a public highway or road to become out of repair, and in a ruinous and unsafe condition. There is no statute or common law liability on towns to re- pair. They are unlike the parishes in England in this respect. Even the vote of the electors in town meet- inff, to pay damages aiising from the ruinous condition of the roads, being without consideration, cannot bind the town to pay such damages. {Morey v. Town of Wewfane, 8 Barb. 645 ; see also Town of Galen v. Clyde, &c. Plank-road Go. 27 Barh. 551 ; Lorillard v. Town of Monroe, W N. Y. R. 392.) No recovery can be had against ir for injuries sustained by reason of neglect on the part of its officers to keep the highway or bridges in a safe and secure conditioTi. {People v. Auditors Little Valley, 75 N. Y. 316 ; People v. Town Auditors Esopus, 74 N. Y. 310), and a judgment having been rendered against an overseer acting under direction of a commissioner, be is not entitled to a man- damus compelling the audit and allowance of the claim by the town. {People v. Van Keuren, 10 Hun, 551 ; S. C. 74 iV. Y. P. 310.) So, at common law, it was held, that if a traveller receive any special damage by the badness of the Toads, and a corporation or private person is bound to repair it, he may have an action on the case for the damage he receives ; but if it belongs to a township, &c., not corporate, he cnn have no action for special damHge, but they are liable to be indicted. {Vau. 340; Gro. EUz. 664.) But the rule is different with regard to incorporated cities and villages ; and where trustees of an incorpor- ated village are, by its charter, made commissioners of highways therein, if a road within the corporate limits is out of repair, and the trustees neglect to re- pair it, an absolute obligation and liability rests on 88 THE LAW OF HIGHWAYS. them in regard thereto ; and for an injury sustained by an individual in consequence of their negligence, the corporation is liable. (Hyatt v. Trustees of Ron- dout, 44 Barh. 385 ; Wendell v. Mayor of Troy, 39 id. 329 ; Clark v. City of Lockport, 49 id. 580 ; Hines V. TTie City of Lockport, 60 N. T. R. 236 ; Sewell v. City of Cohoes, 75 id. 45 ; Wilson v. City of Water- town, 3 Hun, 508.) They are bound to keep the streets and highways in a proper state of repair, and free from all obstructions or defects in the road-bed which vigilance and care can detect and remove. Thus, where they constructed a bridge in so negligent and unskillful a manner, that by means thereof, the plain- tiff ' s building was carried away during a freshet, the corporation was held liable. {Conrad v. Trustees of Ithaca, 16 N. Y. R. 158.) So, where the trustees of a village neglected to fill up the ditch which a wrong- doer had excavated in the street, it was held to be a corporate duty to keep the street in a safe condition. (Hickok V. Trustees of Plattsburgh, 16 N. T. R. 161.) So, where such trustees undertook to construct a plat- form to connect a sidewalk with a bridge, and, while the work was in progress, carelessly left an uncovered space therein during the night, without placing any guard or signal to warn passengers of such opening, the corporation was held liable to one who had fallen through such opening and sustained injuries thereby. ( Weet V. Trustees of Brockport, 16 N. Y. R. 161.) It was held in Wisconsin (June, 1880), that the city was not liable for an injury to one passing over the sidewalk of an approach to a bridge not owned by it in its limits. (Bishop v. City of Centralia.) So, where a corporation caused a culvert to be constructed to carry off the waters of a natural stream, and a freshet having occurred, the culvert, in consequence of COMMISSIONERS, THEIE POWERS AND DUTIES. 89 its want of capacity and the unskillf ulness of its con- struction, failed to discharge the waters, so that they were set back upon the factory of the plaintiffs, and injured their property situated therein ; it was held, that the corporation was liable for damages. {Roches- ter White Lead Go. y. Rochester, 'i N. Y. R. 463.) So, where a corporation had authorized a private indi- vidual to construct a drain across the street of a city for his own private benefit, the corporation was held liable for damages sustained from the negligent and improper manner in which the work was done. ( Wen- dell V. Mayor of Troy, 39 Barh. 329.) To render a city liable for injnrifes received throngh a gas company negligently excavating a ditch in the street, it is nec- essary that the city had notice actual or constructive thereof. The fact that an alderman of the city saw the .excavations being made, is not per se evidence that the city was guilty of negligence. {McDermott v. City of Kingston, 19 Hun, 198. ) No actual notice to the city of a defect is necessary, when ample time has elapsed after a defect has become notorious. {Requa v. City of Rochester, 45 N. T. R. 129.) The mere neglect of the city to remove ice from a sidewalk before 1 p. m., was not such negligence as to render it liable for injuries received by the reason thereof. {BlaTcely v. Qity of of Troy, 18 Hun, 167 ; id. 340 ; but see Theall v. City of Tonkers, contra; JV. Y. Weekly Digest, vol. 10, iVo. 10,^. 218.) If an awning exists by authority of the city, it is liable for any injury arising from a defect, although there be' no external indication of imperfection. {Hume V. Mayor, 74 JV. Y. R. 264.) Where the offi- cers of a corporation have taken charge of a piece of land, regulating and paving it, the same as other streets, although it has not been laid out legally as a 90 THE LAW OF HIGHWAYS. street, tlie corporation is charge&.ble the same as if it had been properly laid out, and is estopped from set- ting up that it is not a legal highway. {Sewell v. City Cohoes, 75 N. T. 45.) Where a municipal corpora- tion in constructing a gutter and curb interferes with a natural stream, flooding the land of a city, it is liable. {Byrnes v. City Cohoes, 67 N. T. 204.) The trustees or corporation may, under certain cir- cumstances, be temporarily exempt from liability where repairs or other work and labor in the street are performed by contractors for the work, and the injury complained of occurs in the progress of the work, by carelessness or negligence on the part of the servants of these contractors. Thus, where a corporation had contracted with an individual to furnish materials and do the work in regulating and levelling a certain street, and the injury complained of had been occasioned by the negligent blasting of rocks, in the execution of the work under that contract, the city corporation was held not liable. {Pack v. Mayor of New York, 8 N. T. R. 222 ; Kelly v. Mayor of New York, 11 N. Y. R. 432.) But where the injury is the result of the work itself, however skillfully performed, the coi-poration, and not the contractor, is liable. Thus, where a sewer was dug in a street by a contractor, which was left open and unguarded at night, with no light or other signal to warn passers of the danger, and there was no stipu- lation in the contract between the corporation and the contractor, that the corporation should cause proper lights to be placed at the excavation, to prevent acci- dents, the corporation was held liable. {Starrs v. City of mica, \1 N. Y. R. 104.) It was thought, in this case, that the city would have been liable even if the contractor had stipulated to keep the proper lights. COMMISSIONERS, THEIE POWERS AND DUTIES. 91 But in Blake v. Ferris (5 N. T. R. 48), where the defendants — private individuals — had license from the city to construct a sewer across a street for their own benefit, and let the work to third parties, binding them as they themselves were bound to the city, to cause proper lights to be placed at the excavation to prevent accident, it was held that the contractor, whose ser- vants were guilty of the neglect, was liable, and that the defendants were liot. See, however, 7^e City of Buffalo v.- Holloway (7 N. Y. R. 493.) The fact that a party deposits building materials in the street and keeps them there during the erection of the building, with the full knowledge of the trustees and superin- tendant of the village, is sufficient to imply a consent on the part of the village authority to such use of the street. {Village of Seneca Falls v. ZaliusM, 8 Hun, 571.) Where a city has been compelled to pay a judgment" to one injured by reason of a pile of sand in the street, the corporation may maintain an action against the owner of the building, who caused the sand to be left there. {City of Rochester v. Mont- gomery, 9 Hun, 394 ; Village of Seneca Falls v. ZaliusM, 8 Hun, 571.) Repair of bridges. — All public bridges are prima facie repairable by the commissioners of highways, without distinction of foot, horse, or carriage bridges, unless they can show that others are bound to. repair particular bridges. But where a bridge has been erected solely for private use, although it may be used by the public, the one who erected it must keep it in repair ; as where a man digs a ditch or canal across a highway and makes a bridge over it. In such case, although the public would have to use the bridge in travelling the highway, yet they would derive no ben- 92 THE LAW OF HIGHWAYS. ■ efit from it, since the way was as good before the bridge was built as after it, and are not bound to maintaiti it. {Bygert v. Schenck, 23 Wend. 446.) But if the bridge be built over a natural stream, and the public cross and recross thereon, the town should keep it in repair, although it was built for the private bene- fit of the builder. {Id.) A company lawfully cutting a canal across a highway, for its own purpose, is bound to build and keep in repair a bridge across it, and so maintain the highway. {Heacock v. Sherman., 14 Wend. 58. ) (See further on this subject ante., page 11. ) Where the premission is granted, by the commission- ers of highways, to a railroad company, to construct and maintain a bridge over a crossing,' the acceptance thereof by the company and the construction of a bridge thereunder, imposes upon it the duty of main- taining the same in good repair. {Hayes v. N. Y. C. and H. R. R. R. Co., 9 Hun, 63.) 5. To Divide Town into Road Districts and Assign Inhabitants thereto. It is further the duty of highway commissioners to divide their respective towns into so many road 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. In making this division the commissioners should meet and confer ; but the order of division will be valid if signed by two of them. It should, however, show that the third met and de- liberated with the other two on the subject, or was duly notified to attend for that pui-pose. (1 R. S. 525, THEIB POWERS AND DUTIES. 93 § 125; see BeeTcmaTt's Petition^ 19 Abb. 244; People V. Williams, 36 N. T. R. 441.) Where a road district was formed from parts of two other districts, and was afterwards ordered to be dis- continiied by the commissioners of highways, as it was held that order was valid, though it did not expressly provide for embracing the territory to which it related within any other road district ; the. effect being to restore the two districts to their original limits. {Peo- ple V. Sly, 4 Hill, 593.) Where commissioners of highways of two towns lay out a road upon the line of the towns, the must divide it into two or more road districts, and allot an equal number of the districts to each town, and each district thenceforth wholly belongs to the town to which it is allotted for the purpose of opening and improving the road and keeping it in repair. (1 R. 8. 616, §§ 73, 74, 75 ; Bradley v. Blair, Yl Barb. 480. ) This provision of the Eevised Statutes is not repealed by chap. 311, of Laws of 1870. {Jones V. City of Utica, IQHun, 441.) An agreement between the officers of a city and those of a town dividing the street between the places intO' road districts, filed in the office of the clerk of the cityj is valid. {Jones v. City of Utica, supra.) So, all highways heretofore laid out upon the line between any two towns shall be divided, allotted, recorded and kept in repair in the manner above described. (1 R. S. 516, § 76.) For the manner of proceeding in so dividing highways on the line see Laws of 1870, ch. 311, chap. VIII, subdivi- sion 8. Information of new road districts. — Whenever the owners of real estate lying along the line of any plank or turnpike road, representing two-thirds of the front- age on such road, for a distance of not less than one 94 THE LAW OF HIGHWAYS. mile continuously, and not included within the limits of any incorporated city or village, shall apply in writing to the county court of the county in which such road shall be situated, and shaU present to such court the assent, in writing to such application of the director of such plank or turnpike road company, and of the supervisor and commissioners of highways of town or towns in which such road is situated. The said court, at any regular session thereof, may constitute that portion of such road described in the said appli- cation a separate road district, to be exempt from the jurisdiction of the commissioner of highways of the town or towns in which such district shall be situated. (Laws 1876, chap. 373, § 1.) Commissioners to be appointed. — Whenever a road district shall be constituted, as provided in the pre- ceding section, the said court shall appoint, under its seal, the commissioners, whose duties shall be as herein prescribed. Before entering upon the duties of their office the commissioners shall take and file in the office of the clerk of the town, in which they shall reside, the Constitutional oath of office, and shall exe- cute to the supervisor of the town a bond for such amount as the supervisor shall prescribe with sufficient sureties, to be approved by him and conditioned for the faithful performance of their duties. {Id. § 2.) Meeting of owners. — The commissioners immediately upon being so qualified, shall call a meeting of the owners of the rieal estate fronting on such road, of which meeting at least six days' personal notice shall be given to each resident owner, and a similar notice in writing mailed to each non-resident owner at his usual post-office, at which meeting, when held, it shall COMMISSIONERS, THEIK POWERS AND DUTIES. 95 be lawful, by the vote of a majority of the real estate owners thus notified and attending, to direct the grading, macadamizing or otherwise improving of such road, and the raising by tax on the property fronting on such road, and on the personal property in the dis- trict liable to taxation for highway purposes, the sums, necessary to be expended for the same. {Id. § 3.) Levying of Taxes. — The taxes authorized to be raised by the last preceding section shall be levied by the commissioners on the property liable for the same, on the basis of the assessment made in the last annual assessmei;it roll of the town. In cases where the prop- erty to be assessed shall front in part on such plank road and in part on some other road, the commission- ers shall determine what portion of such road shall be included within their road district. And in case they shall be unable to agree upon the ratable valuation of the part so included, or the person owning or repre- senting such property shall be aggrieved by the assess- ment thereon, appeal may be had on ten days' notice in writing by the contesting party, to the opposite party, to the assessors of the town; whose decision in the case when duly certified and filed, in the ofiice of the town clerk, shall be final. The tax-list shall also include the names of all persons liable to poll tax in the district, and the tax chargeable by law to such persons, and the list, when completed, shall be verified by the oath of the commissioners, and one copy shall be filed in the office of the clerk of the town, and a second copy delivered to the supervisor, who shall present the same to the board of supervisors of the county at their next annual session, and the said board shall cause such tax to be levied and collected in the same manner as other taxes, ar© levied and collected by 96 THE LAW OF HIGHWAYS. their authority. The tax for such road district shall be stated in the town roll, in a separate item from other taxes. The proceeds of such tax, when collected, shall be paid to the said commissioners, and shall be by them applied solely to the purpose for which such tax was raised. And the same remedies as are by law applicable to delinquent State, county and town taxes, shall apply to delinquencies occurring in the taxes levied in pursuance of this act. {Id. § 4.) Map to be filed. — The commissioners above named shall cause to be made and filed in the office of the town clerk, in which such road district shall be situated, a map describing the lands situated therein liable to taxation for the purposes of this act. {Id. § 5.) Term of office.— The term of office of such commis- sioners shall be one year from the time they shall be qualified, as herein qualified as herein provided ; and one week before the expiration of their term of office, on notice published in the nearest newspaper, the per- sons liable to be taxed for the purposes herein pro- vided, in any such district, shall assemble at some place within the district, to be named in the notice, and elect by the votes of a majority of their number present, three commissioners to take the place of the commissioners first appointed. The commissioners thus chosen shall perform the same duties and be subject to the same liabilities as the commissioners first appointed, and shall hold their office for one year and until their successors shall be duly elected and qualified as herein provided ; and elections for the choice of such commissioners shall thereafter be held annually in the same manner, one week before the expiration of term of the outgoing com- COMMISSIONERS, THEIK POWERS AND DITTIES. 97 missioners. At eacli animal meeting for the elec- tion of officers, the lawful voters thereat, shall, by the vote of a majority of their number, fix the sum to be raised during the year for the maintenance and im- provement of the road in their district. (Id. § 6.) Annual statement. —KX each annual meeting, such commissioners shall present thereat a detailed state- ment of their receipts and expenditures for the past year, which statement shall, within six days after such presentation, be filed in the office of the town clerk. {Id. § 7.) Loans. — The commissioners shall have authority to borrow, on their official bond, any sum of money not exceeding in any year the amount of tax authorized to be raised therein, and in anticipation of such tax, which they shall need for the purposes contemplated by this act. {Id. § 8.) The commissioners shall receive no compensation for for their services, but may appoint such foreman as they shall deem necessary to superintend the work to be done in the district, and pay them a reasonable compensation for their services. But the commission- ers may be reimbursed, out of the funds of the dis- trict for the actual expenses which they may nec- essarily incur in the discharge of their duties, the accounts for which expenses they shall respectively verify by their oaths. {Id. § 9.) No tolls. — No toll-gate or toll-bar shall be main- tained by any plankroad or turnpike road company within any road district formed pursuant to this act, nor shall any toll be exacted of any person, nor of the members of the immediate family of such person, who 8 98 THE LAW OF HIGHWAYS. shall be taxed or be liable to taxation for the support of the road in such district. {Id. § 10.) The provisions of this act shall not apply to any road, whose charter term remaining unexpired shall exceed five years. {Id. § 11.) Roads through unimproved lands. — The board of supervisors of any county in this State containing more than three hundred thousand acres of unoccupied and unimproved forest lands, in addition to the powers now possessed by said board, is hereby authorized to establish separate highway districts in such county, for the purpose of laying out and constructing high- ways through such unimproved and unoccupied tracts of land in such county ; such highway district to be established upon the application of the owners of more than one-half of the non-resident lands to be included therein. Any highway district established under the provisions of this act shall consist of contiguous tracts or parcels of land and may include within its limits parts of one or more towns, and the same may be changed, altered or abolished at any time by said board of supervisors. The said board of supervisors shall have power to appoint a commissioner or com- missioners to lay out and construct highways in any such district and to prescribe their powers and duties, and may also direct the manner in which highway taxes shall be assessed, levied and collected upon the lands embraced in any such district, and likewise the manner of expenditure thereof. The said board of supervisors may also authorize commissioners ap- pointed under this act to borrow money on such terms as said board shall direct, but not exceeding the esti- mated amount of ten years' highway taxes upon the lands embraced within the district in which such loan COMMISSIOKEBS, THEIE P0WEE8 AND DUTIES. 99 is authorized, and may, for the purpose of repaying any such loan, set apart and appropriate the highway taxes upon lands in any such district for a period not exceeding ten years from the time of making such loan. (Laws of 1880, chap. 175.) Consolidation of road districts. — By chap. 258, of the Laws of 1876, the- supervisors have the power to authorize the consolidation in any town of two or more of the established road districts therein, and the divi- sion of any established road district into two or more ; and to constitute the territory of any incorporated vil- lage into a separate road district, and to provide for the election or appointment of overseers of highways in such districts, and prescribe the manner in which the highway labor assessed and highway taxes col- lected in such consolidated, or separate districts, shall be expended and accounted for, except that whenever an incorporated village shall constitute a separate and independent road district, the commissioner or super- intendents of streets, or officers of said village, by whatsoever title or name called, whose duty it shall be to control, superintend and repair the streets therein, shall be the overseers of highways in said district. To assign inhabitants. — The sixth subdivision pro- vides for the assignment to each of the road districts of such of the inhabitants liable to work on the high- ways as they may deem proper, having reference to proximity of residence as much as may be. It also provides that where the commissioners shall have neg- lected, for one year after a road has been laid out and title thereto acquired, to open and work the same, that any number of inhabitants of the town in or 100 THE LAW OF HIGHWAYS. through which such road passes, may give ten days' notice to the commissioners of the town that they desire to apply their labor to the working of said road, and that the commissioners shall thereupon assign the said inhabitants to such road, and direct their labor to be performed thereon under the direction of one of their number ; and that, if the labor assessed against such inhabitants for the current year shall not be suf- ficient to put the road in proper repair, they may anticipate their labor for three years, but that from no one of the districts of the town shall more than one- half of its annual labor be so taken and applied. (1 It. S. 502.) Whenever any plank road or turnpike road shall be buUt in jjursuance of the statute, upon the site of an old highway, it shall be the duty of the commission- ers of the highways of the town where such road shall be made, to designate some district or districts, within their town, on which the highway labor of the inhabi- tants residing along the line of said plank or turnpike road shall be performed. Laws 1849, ch. 250, § 11. (See form No. 10.) Warning. — It is made the duty of the commis- sioners by subdivision seven of the above section, to require the overseers from time to time, and as often as they shall deem necesary, to warn all persons assessed to work on highways, to come and work thereon, with such implements, carriages, cattle or sleds, as the said commissioners or any one of them shall direct. It is the duty of overseers to warn all such persons, when so required by the commissioners, or any one of them, and for every refusal or neglect so to do, such overseers shall forfeit the sum of ten dollars, to be COMMISSIONERS, THEIR POWERS AND DUTIES, mi^^ L\*^ sued for and collected by the commissioners. (1 Ji. 8. 504, §16.) To act as Inspectors of jplank roads.— -Bj chapter 779 of the Laws of 1872, the highway commissioners were to inspect the plank roads on the complaint of three freeholders, but by the Laws of 1873, chapter 440, as amended by Laws of 1877, chapter 164, it shaU be the duty of said officers to personally inspect the whole of such plank or turnpike roads or such part therpof as lie in their respective towns, villages or cities, at least once in each month, and in case the same shall be out of repair, . or in such condition that the same cannot be conveniently used by the public, to give notice in writing thereof immediately to the toll- gatherer, or person attending the gate nearest to each place out of repair, or in bad condition, to cause such road to be put in good condition within forty-eight hours from the service of such notice, or in default thereof, to order the toll-gate or gates upon said road to be immediately thrown open, and such gate or gates shall not be closed until such road shall be fully re- paired or be in proper condition, to the satisfaction of said officers, or a majority thereof. The notice to said toll-gatherer shall point out the part of such road, to which the said officers shall object. li'ees of Inspectors. — The fees of each of said offi- cers, for the services in this section mentioned, shall be two dollars for each day actually employed in such service; to be paid by the corporation or per- sons whose road shall be so inspected by said officers, in case they shall order said toll-gate or gates to be thrown open, but otherwise, to be charged, audited and paid in the same manner as the other fees and expenses of commissioners of highways. Any 102 THE LAW OF HIGHWAYS. party feeling himself aggrieved by the order of said plankroad inspectors, may appeal therefrom to the county court of the county in which the part of the road embraced in said order is situated, said appeal to be brought within twenty days after the service of said order. The notice of appeal shall be served upon one of said inspectors and a copy thereof shall be filed in the county clerk's office. The appeal may be brought on to hearing upon a notice of not less than five days, and the county court shall always be open for the pur- pose of hearing and determining such appeal. The said court shall proceed to hear said appeal, and after hearing the proofs and allegations of the parties, may affirm, reverse or modify said order. During th« pen dency of such appeal, said toll-gate or gates shall remain open. This act does not apply to the counties of Cortland (Laws 1873, chap. 699), Clinton, Chenango, Seneca, Queens, Orange, Essex, Cayuga (Laws 1874, chap. 224), Warren (Laws 1877, chap. 440), Ulster and Rensselaer (Laws 1876; chap. 416, as amended by Laws of 1878, chap. 176, and 1880, chap. 137.) 6. To Lay Out and Discontinue Roads. The commissioners of highways shall have power, in the manner and under the restrictions hereinafter provided, to lay out on actual survey, such new roads in their respective towns as they may deem necessary and proper; and to discontinue such old roads and highways, as shall appear to them, on the oaths of twelve freeholders of the same town, to have become unnecessary. (1 R. 8. 502, § 2 ; see forms Nos. 44^54.) One who has a title to real estate is a " freeholder," COMMISSIOKEES, THEIK POWERS AND DUTIES. 103 irrespective of the amount or value of his interest therein. {People v. Scott, 8 Hun, 566.) A commis- sioner of highways is not prohibited from acting' in the laying out of a highway, by the fact that he is an owner of lands through which the projected highway runs. {Foot v. Stiles, 57 N. T. B. 399 ; SoutTiern Boulevard, 3 Abh. Pr. [N. S.J 447.) The restrictions above alluded to are, that no road shall be laid out through any orchard or garden, with- out the consent of the owner thereof, if such orchard be of the growth of four years or more, or if such gar- den has been cultivated for four years or more before the laying out of such road. Nor shall any such road Tae laid out through any buUdings or fixtures or erec- tions for the purposes of trade or manufactures, or any yards or inclosures necessary to the use and enjoy- ment thereof, without the consent of the owner. (1 R. S. 514, § 57.) And, further, , that no highway shall be laid out through inclosed, improved or cultivated land, without the consent of the owner or occupant thereof, unless certified to be necessary by the oath of twelve reputable freeholders of the town, in the 'man- ner hereinafter provided. {Id. % 58.) Kor through the lands of an incorporated soldier' s monument asso- ciation, without the consent of the trustees thereof, except by special permission of the Legislature. (Laws 1866, ch. 273, § 6.) Consent. — A parol consent to lay out a road throtlgh any premises above described, is valid, provided it be acted upon, and the road laid out before any revoca- cation, but such consent is revocable, and is revoked by a sale and conveyance of the land in good faith, prior to the laying out of the road. {People v. Oood- win, 5 N. T. R. 568 ; People v. AWrigM, 23 How. 104 THE LAW OF HIGHWAYS. 306.) Although such consent may be revoked, it must be done before the road is laid out. If the commis- sioners act immediately on the faith of the virtual con- sent by laying out the road, the owner will be estopped from denying the legality of the act. {Marble v. Whitney, 28 N. T. E. 293.) Prudence would dictate that the consent of the owner should be obtained in writing. WJio may apply.— Etverj 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 commis- sioners of such town to alter, discontinue or to lay out any road through the same. (Laws of 1836, ch. 122.) The word "same," in the above act, refers to the town, and not to the land of a non-resident. {People V. Eggleston, 13 How. 123.) Without application.— \\i is not essential to the validity of the proceedings of commissioners in laying out a road, that there should be an application therefor in writing ; nor in fact any application, since it is decided that they may lay out a highway upon their own motion, and without any application therefor. {People V. Supermsors of Richmond, 20 N. Y. R. 252 ; Marble v. Whitney, 28 N. T. R. 305.) Nor is it any objection that the proceedings are taken on the appli- cation of one not liable to assessment for highway labor. {Id.) Through buildings, fixtures, etp. — They have no power to lay out a road through a court-yard contigu- ous to a dwelling, nor ground adjoining a factory, and actually used and occupied by its machinery an ap- purtenances. {Clark V. Phelps, 4 Cow. 190 ; Lansing COMMISSIONEKS, THEIE POWEES AND DUTIES. 105 V. Caswell, 4 Pfiige, 519 ; Ex parte Clapper, 3 Hill, 458.) But grounds adjacent to an establishment, used for trade or manufacture, and occupied for its pur- poses, but not defined by any visible marks, or by definite occupation within some certain lines, are not within the provisions of the 57th section above cited. {People V. Kingman, 24 N. T. R. 559.) Nor is a ditch or canal by which water is conducted to a mill, a building, fixture or erection, within the meaning of said section. {Id.) So, the provision of the statute, that no road should be laid out through an orchard, is not violated by laying out a road through an inclosed field in which there are fruit trees, if not so laid out as to deprive the owner in whole or in part of the ben- ' eficial enjoyment of the trees. {People v. Judges of Dutchess, 23 Wend. 360.) If a road be laid through an orchard of four years' growth, without the consent of the owner, entering to open and work it, is a tres- pass. {Harrington v. People, 6 Barh. 607.) The owner cannot defeat the laying out of a road, by erecting or moving a building upon the proposed line, after an application has been made ; in such case the commissioners may proceed and lay the road through it. {Carris v. Commissioners of Waterloo, 2 Hill, 443.) When two may act. — Commissioners of highways, in laying out a road, must all be present and deliberate on the subject, or else must have been duly notified to attend a meeting of the commissioners for the purpose of deliberating thereon, but a majority of them may decide. It must appear, however, in the order filed by them that all the commissioners met and deliberated on the subject, or were duly notified to attend a meet- ing of the commissioners for the purpose of deliber- 106 THE LAW OF HIGHWAYS. ating thereon. (1 H. S. 525, § 125 ; Bahcock v. Larnb, 1 Cow. 238.) An order laying out a highway through improved, inclosed or cultivated land, signed by only two of the commissioners, and not reciting that the third partici- pated in the proceedings, or was notified to do so, is void. {People v. Hynds, 30 N. Y. R. 470 ; Stewart v. Wallis, 30 Barb. 344.) The order must be sufiicient on its face. Its defects cannot be helped out or sup- plied by parol. {Id. Fitch v. Commissioners of KirTcland, 22 Wend. 132.) Where the third commis- sioner did not participate in the proceeding, the order must show that he was duly notified to attend for the purpose of deliberating on the subject of laying out the road. A simple allegation that one of them had been duly notified to attend is insufficient. {Fitch v. Commissioners of KirJcland, supra..) One commissioner cannot authorize another to sign his name to orders, laying out a highway. ( Todd v. Todd,N. Y. 5 Sup. 531.) But the commissioners having all met, and consulted and agreed upon the alterations, the power to make them may be deputed to and vested in one of their number. {Smith v. Helmer, 7 Barb. 416, 423 ; see Boots v. Washburn, 79 JV. Y. R. 207, 212.) Where an order was made by two commissioners of highways laying out a road, in which it was recited that all the commissioners met and deliberated on the subject, and the referee found, as facts, that all' three of the commissioners met and viewed the proposed route, and that subsequently two of them caused it to be surveyed and made the order, as of that date, lay- ing out the road ; and that one of the commissioners was not present at the survey, nor notified to attend the same, it was held that the order was valid, in the THEIK POWEES AND DUTIES. 107 absence of any finding that the third commissioner did not meet with the others and deliberate on the subject of laying out the highway ; the presumption being that all the commissioners did meet and deliber- ate on that subject, and that the act was legal untU the contrary appeared. The survey was a mere ministerial act, not requiring the presence of the third commis- sioner to give validity to the order laying out and es- tablishing the highway. {Marble v. Whitney, 28 N. T. B. 297.) Acts may he impeached. — In laying out a highway the commissioners exercise a special and limited juris- diction, and although it may be presumed that their acts were legal until the contrary appear, their acts may be impeached. If they have no jurisdiction, as where they lay out a road through a yard or building, without the consent of the owner, their order is void, and is not helped by the affirmance of the . judges on appeal. {Ex parte Clapper, 3 Hill, 458 ; People v. Eggleston. 13 How. 123 ; Miller v. Brown, 56 N. T. H. 383.) But a void order is no bar to a new pro- ceeding. {People v. Eggleston, supra.) The appli- cation to lay out a new road, and to discontinue an old one, may be in one, and whether the proceedings to dis- continue the old road are valid or not, wUl not affect the new road, if that is properly laid out. {People v. Robertson, 17 How. 74.) Discontinuing road. — To authorize the commis- sioners to discontinue an old road, it must appear to them on the oaths of twelve freeholders of the same town,- to have become unnecessary. The statute, by "freeholders," means such as have the legal title to real estate — such as are freeholders without a proceed- 108 THE LAW OF HIGHWAYS. ing in court to make or declare them so. (See People V. Hynds, 30 N. T. R. 472.) If the jury proceed without the oath of twelve freeholders, their proceed- ings will be void. {Id.) To summon jury. — When application is made for the discontinuance of an old road, on the ground that it is useless and . unnecessary, the commissioners must summon twelve disinterested freeholders of the town to meet on a day certain to consider such application. Such freeholders are to be sworn by one of the com- missioners, well and truly to examine and certify in regard to the propriety of such discontinuance. (1 R. 8. 517, § 81.) The commissioners need not issue any process to summon a jury ; it will be sufficient to request the jury to serve upon the application. {Peo- ple V. Commissioners of Oreenhush, 24 Wend. 367.) But if process be used to summon the jury, and it afterwards prove that such process was void, the jury will not be disqualified from acting, provided they be legally requested to serve. {Id.) The statute does not authorize the commissioners to call in the aid of an officer to summon the jury. That is the duty of the commissioners themselves. {Id.) How to proceed. — The jury are to proceed to view such road, and if they come to the conclusion that the road is useless and unnecessary, they are to make and subscribe a certificate to that effect, and to deliver the same to the commissioners. The commissioners there- upon proceed to decide upon such application. (1 P. 8. 518, § 82.) What roads. — The powet of commissioners to dis- continue roads is limited to roads which have, since COMMISSIONEES, THEIR POWERS AWD DUTIES. 109 they were laid olit, become, or proved upon trial to be useless and unnecessary. It does not enable them, or a jury of freeholders called by them, to reverse deci- sions laying out roads, especially where such decisions have been aflSirmed on appeal. {People v. Fike, 18 How. 70.) See further as to the powers and duties of commissioners in laying out or discontinuing roads hereafter. (For forms herein, see Appendix No. 42.) 7. To Account to Town Auditors. The commissioners of highways of each town, shall render to the board of town auditors at their annual meeting for auditing the accounts of town officers, an account in writing, stating, 1. The labor assessed and performed in such town. 2. The sums received by such commissioners for fines and commutations, and all other moneys received nnder this chapter. 3. The improvements which have been made on the roads and bridges in their town, during the year imme- diately preceding such report, and an account of the state of such roads and bridges, and, 4. A statement of the improvements necessary to be made on such roads and bridges, and an estimate of the probable expense of making such improvements, beyond what the labor to be assessed in that year will accomplish. (1 R. S. 502, § 3. See form Ko. 11.) 'By the act of 1863 it is provided that, "The town auditors in the several towns of this State, shall examine the accounts of the overseers of the poor and the com- missioners of highways of such town, for all moneys received and disbursed by them, and shall meet for the purpose of examining the same, annually, in each town of this State, on the Tuesday preceding the annual town meeting to be held in each town. 110 THE LAW OF HIGHWAYS. "Tlie commissioners of highways in each town of this State, and all town officers who receive or disburse any moneys belonging to their respective towns shall, on the last Tiiesday preceding the annual town meeting of their town, account with the board of town officers of such town for all moneys received and disbursed by them by virtue of their offices. The said board of town auditors shall make a state- ment of such accounts, and append thereto a certificate, to be signed by a majority of the board, showing the state of the accounts of the said highway commission- ers and other officers at the date of the certificate; which statement and certificate shall be filed with the town clerk of the town, and be by him produced at the next annual town meeting, and publicly read." (Laws 1863, ch. 172.) 8. Is Raising Money for 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 there- of ; which supervisor shall lay the same before the board of supervisors at their next meeting. (See form No. 12.) The board of supervisors shall cause the amount so estimated to be assessed, levied and collected in such town, in the same manner as other town charges ; but the money to be raised in any such town shall not exceed in any one year the sum of two hundred and fifty doUars. (1 B. S.. 502, § 4.) , Additional appropriation. — By the act of 1832 (chapter 274), " for the more effectual improvement of COMMISSIONERS, THEIR POWERS AND DUTIES. Ill roads and bridges," it was provided that when the commissioners should not deem the sum of two hun- dred and fifty dollars sufficient to pay the expenses actually necessary for the improvement ' of roads and bridges, a further sum, not exceeding two hundred and fifty dollars, might be raised. The act is in the follow- ing words : "§ 1. Whenever the commissioners of highways of any town in this State shall be of opinion that the sum of two hundred and fifty dollars, as now allowed by law, will be insufficient to pay the expenses actu- ally necessary for the improvement of roads and bridges, it shall be lawful for such commissioners to apply in open town meeting, for a vote authorizing such additional sum to be raised as they may deem necessary for the purpose aforesaid, not exceeding two hundred and fifty dollars, in addition to the sum now allowed by law." Notice of application. — "§2. Before making such application, it shall be the duty of the commissioners to give notice of their intended application, by post- ing the same in a conspicuous 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 shall specify the amount to be applied for, and the purposes to which the same is to be appropriated, with the probable amoYint necessary to be expended at each place, if there shall be more than one." (See form No. 12.) To exhibit accounts and estimates. — "§3. When- ever any application of a grant of money for the pur- poses mentioned in the first section of this act, shall be made to any town meeting, it shall be the duty of 112 THE LAW OF HIGHWAYS. the commissioners making the same, to exhibit a state- ment of their accounts, and an estimate of the ex- penses necessary for the improvement of roads and bridges in such town the ensuing year." How money to "he raised. — " § 4. If the town meet- ing shall, by their votes, determine that a sum over and above the amount now allowed by law, will be necessary for the improvement of roads and bridges, or to pay any balance that may be due, the clerk shall enter such resolution as shall be agreed to in the min- utes of the naeeting, 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 meet- ing ; and it shall be their duty to cause the amount specified in such resolution to be levied and collected, in the same manner as other town charges of such town." Moneys already voted.— '■'■% 5. If any town shall, at an annual meeting, have already voted to raise a sum exceeding two hundred and fifty dollars, for the pur- poses aforesaid, it shall be the duty of the board of supervisors of the county in which said town is situa- ted to assess, levy and collect the sum so voted to be raised upon said town. Further appropriation. — By the fifth subdivision of section first of the act of 1838 (chap. 314), ' ' to enlarge the powers of boards of supervisors," the board of supervisors of each county is empowered : " To cause to be levied, collected and paid in the manner now provided by law, such sum of money, in addition to the sum now allowed by law, not exceed- ing five hundred dollars in any one year, as a majority COMMISSIONEES, THEIE POWERS AKD DITTIES. 113 of the qualified voters of any town may, at any legal town meeting, have voted to be raised upon their town, for constructing or repairing roads and bridges in such town." By the second segtion of the same act it is provided that, " No moneys shall be raised under the authority conferred by the fifth subdivison of the preceding sec- tion (which is the subdivision cited above), unless a written notice of the application to such town meeting to raise such amount shall be posted on the door of the house where the town meeting is to be held, and also at three public places in such town for two weeks before the town meeting, and be also openly read to the electors present immediately after the opening of the meeting." (See form No. 13.) A further act was passed in 1857 (chap. 615), which provided that, " Whenever the commissioners of highways of any town in this State shall be of opinion that the sum now provided by law will be insufficient to pay the ex- penses 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 authorizing such additional sum to be raised as they may deem necessary for the purposes aforesaid, not exceeding seven hundred and fifty dollars in addi- tion 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 doUars." (See form No. 13.) Legalizing informal acts. — By Laws of 1869, chap- 9 114 THE LAW OF HIGHWAYS. ter 855, § 5, as amended by Laws of 1871, chapter 695, the board of supervisors of any county, except New York and Kings, may legalize the informal act of any town meeting in raising money for road or bridge pur- poses, provided such legalization shall be recommended by the county court of such county. Borrowing money. — Again, the board of supervisors in each county are empowered by the ninth subdivision of section four of the act of 1849 (chap. 194). "To authorize any town in such county, by a vote of such town to borrow any sum of money, not ex- ceeding four thousand dollars in one year, to build or repair any roads or bridges in such town, and prescribe the time for the payment of the same, which time shall be within ten years, and for assessing the princi- pal and interest upon such town." By chapter 855 of the Laws of 1869, as amended by the Laws of 1874, chapter 260, the boards of supervisors of each county in this State, except New York and Kings shall have power at their annual meeting, or any other regular meeting, to authorize the supervisor of any town in said county by and with the consent of the commissioner or commissioners of highways, town clerk and justices of the peace of such town, to borrow such sum of money, for and on the credit of each town, not exceeding, however, in any year, the amount of one-half of one per cent, on the assessed valuation of the taxable property of the town for such year as the said town officers may deem necessary to build or repair any road or roads or bridge or bridges in such town, or which shall be partly in such town, and partly in an adjoining town, or to pay any existing debt incurred in good faith by or on behalf of such town for such purpose, before the passage of this act ; and the said THEIR POWERS AND DUTIES. 116 board of supervisors shall have power to prescribe the form of obligation to be issued on any such loan, and the time and place of payment, the time not to exceed ten years from the date of such obligation and the rate of interest thereon not exceeding seven per cent, per annum. And the said board of supervisors shall have power, and it shall be their duty, from time to time, as the said obligations shall become due and payable, to impose upon the taxable property of such town suffi- cient tax to pay the said principal and interest of such obligations according to the terms and conditions thereof. Meeting. — By the same act the town officers here- inbefore mentioned are directed to meet at the town clerk's office in the town for which they are elected or appointed, on the first Monday of Sep- tember in each year, at ten o'clock in the morning, to determine what amount, if any, shall be borrowed on the credit of such town for the purposes contained in the first section of the act hereby amended, and for what roads or bridges such amount shall be borrowed or appropriated ; and such meeting may be adjourned, from time to time, either for want of a quorum or in default of any final determination of any question arising concerning such appropriation, but no such meeting shall be held subsequent to the first Monday of October in each year. Gertiflcate to he indorsed on bonds. — The bonds authorized to be issued by this act shall have indorsed thereon a certificate signed by the town clerk of the town for which they are issued, to the effect that such bonds are issued with the consent of the town officers herein mentioned, at a meeting the date of which shall be mentioned in such certificate. 116 THE LAW OF HIGHWAYS. The town clerk of any town on account of which such bonds are issued shall keep a record showing the date and amount of such bonds., the time and place when the same are made payable, and the rate of in- terest thereon. Such bonds shall be delivered to the supervisor of the town, who shall dispose of the same for not less than the par value thereof, and pay the proceeds thereof to the commissioner or commissioners of high- ways of such town, to be used by him or them for the purposes for which the same were appropriated ; but not more than five hundred dollars of such proceeds shall be expended upon any one road or bridge, except under and in pursuance of a contract to be made by the contractor with the commissioner or a majority of the commissioners of highways of such town for the construction or repair of such road or bridge, which contract shall be approved by a majority of the town auditors of such town, neither of whom shall be inter- ested in such contract. Any amount borrowed and appropriated, pursuant to the provisions of this act, for the repair or con- struction of any road or bridge in any town, and which it shall not be necessary to use for such purpose, shall be applied by the commissioner or commissioners of highways to the repair of any other road or bridge in such town. Roads in the limits of an incorporated milage. — In case the road or roads, or bridge or bridges, re- ferred to in the first section of this act, shall be wholly or partly within the limits of any incorporated village, the consent of a majority of the trustees of such vil- lage shall be necessary for the action of supervisors of towns under said section, in addition to the consent of THEIE POWEES AND DTJTIES. 117 the. commissioner or commissioners of highways, town clerk and justices of the peace of such town. {Id., as amended by Laws 1873, chap. 323.) Qv£ens county. — An amendment was made to this Law, by chapter 285 of Laws of. 1872, giving addi- tional powers to the board of supervisors of Queens county. (See also chap. 451 of the Laws of 1880, amending chap. 441, Laws of 1864.) Non-resident taxes. — The supervisors have the power, upon the application of a majority in value of the owners of the real estate lying along the line of any highway, laid out through unimproved lands, to appro- priate the non-resident highway tax on the lands lying along that road for the improvement of the same. But this improvement shall not apply nor interfere in any case where the same object is provided for by any special law passed prior to January 1, 1875. (Laws 1875, chap. 482, § 12.) By the Laws of 1878, chapter 377, as amended by chapter 67 of the Laws of 1879, all moneys raised and collected upon the taxable property of any of the towns of this State for highway and bridge purposes, shall be paid over by town collectors of taxes to the commissioners of highways of the town in which said moneys are so raised and collected, and to no other officer or person whatsoever. It shall be the duty of the board of supervisors to issue warrants to the collectors of towns requiring the paying over by them of aU moneys raised and collected for highway and bridge purposes, to the commissioners of highways of towns ; and it shall not be lawful for the board of supervisors of any county to issue warrants to town collectors di- recting them to pay over any moneys raised and col- 118 THE LAW OF HIGHWAYS. lected upon any town for highway and bridge pur- poses, to the village authorities of any incorporated village, situated wholly or partly in any town. But nothing in this act shall prevent boards of supervisors from raising money under section 2 of chapter 855 of the Laws of 1869, and from issuing warrants to collect the necessary money to repay the same. And said boards of supervisors may appoint a commissioner or commissioners to spend and account for any moneys raised for road or bridge purposes, under said chapter 855 of the Laws of 1869, under such regulations as said boards shall deem proper. (§1.) It shall be the duty of the commissioners of high- ways, in the several towns in this State, to expend all moneys raised and collected in any town and paid over to such commissioners of highways, upon the high- ways and bridges, situated in the town in which such moneys are raised and collected, and not elsewhere, in such proportions as they may deem just and proper. (§ 2.) This act shall not apply to incorporated villages con- stituting a separate road district, or to special road districts of this State, now provided for by special act. (§ 3.) Where road or bridge is damaged or destroyed. — By the act of 1858 (chap. 103, as amended in 1865, chap. 442), entitled "An act to provide for the speedy construction and repair of roads and bridges where the same shall have been damaged or destroyed," it is pro- vided that : "§ 1. In case any road or roads, bridge or bridges shall be damaged or destroyed by the elements or otherwise, after any town meeting shall have been held, and since the fifteenth day of February, a. d.. COMMISSIONERS, THEIK POWEES AND DUTIES. 119 eighteen hundred and sixty-five, then, and in that case," it shall be lawful for the commissioner or com- missioners of highways, by and with the consent of the board of town auditors, or a majority thereof, of the town or towns in which such road or roads, bridge or bridges shall be situated, to cause the same to be immediately repaired or rebuilt, although the expen- diture of money required may exceed the sum now authorized to be raised by law upon the taxable prop- erty of the town or towns for such purposes ; and the commissioners of highways shall present the proper vouchers for the expense thereof to the town auditors, at their next annual meeting, and the said bill shall be audited by them, and the amount audited thereon shall be collected in the same manner as amounts voted at town meetings as now required.. The commissioners acting under this act, shall be entitled to receive for each day's service actually rendered, two doUars." " § 2. The 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 com- missioner 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 auditors ; and the supervisor and town clt^rk 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 certifi- cate 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." "§3. No accoimt for services rendered or material furnished according to the provisions of this act, shall be allowed by such board, .unless the same shall be 120 THE LAW OF HIGHWAYS. accompanied by the affidavit of the party or parties 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." The Legislature may authorize money to be bor- rowed upon the credit of a town which embraces sev- eral villages to be used in laying out and improving roads, though they do not pass in whole or in part through any of such villages. {People v. Supervisors of Queens Co. , 18 Hun, 4 ; see People v. Flagg, 46 N. Y. 401.) To authorize the supervisors to borrow money, the trustees of a village are not required to- act as a board and vote, but it is sufficient if a majority of trustees join in a written request to the supervisors to authorize the loan to be made. {People v. The Board of Super- visors of Queens Co., supra.) 9. To Appoint Overseers, and to Prosecute them FOR Neglect op Duty. Prior to 1865, the overseers of highways were elected by the electors of each town at their annual town meeting (1 B. S. 340, § 3), but by the act of that year (Laws of 1865, chap. 522, § 7, as amended by the Laws of 1880, chap. 503), it is provided that "From and after the passage of this act the commissioner or com- missioners of highways in each town of this State shall have the power, and it shall be their duty, within one COMMISSIONERS, THEIR POWERS AND DUTIES. 121 week after such annual town meeting, by an instru- ment under their hand, or hands, to be filed with the town clerk, to appoint as many overseers of highways in their respective towns as there are road districts therein, which overseer shall be a freeholder, unless by a petition as hereinafter provided, unless there are no freeholders in such district, to hold their oflB.ce during one year ; but, in making such appointment, it shall be the duty of such commissioner or commissioners to appoint such person, whether freeholder or not, in any such district, as may be suggested or nominated by a written petition, signed by residents of such district, representing three-fifths of the number of day' s work assessed in such district for the next preceding year. And it shall be the duty of the town clerk to notify each overseer of his appointment, as now required by law in case of elections ; and all provisions of law now aj5plicable to overseers of highways heretofore elected under the provisions of the sections above amended, shall apply to overseers of highways appointed under the provisions of this act." (For form of order ap- pointing,, see form No. 14.) To fill vacancies. — If any person chosen to the office of overseer of highways shall refuse to serve, or if his office shall become vacant, the commissioners of high- ways of the town shall, by warrant under their hands, appoint some other person in his stead ; and the over- seer so appointed shall have the same powers, be sub- ject to the same orders, and liable to the same penal- ties as overseers chosen in town meetings. (1 JS. 8. 504, § 14,) The commissioners making the appoint- ment, 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. {Id. § 16 ; 122 THE LAW OF HIGHWAYS. seeposiea Overseers, their Powers and Duties ; see form No. 15.) A person who has' been appointed overseer, and has neglected or refused to serve, cannot be again appointed under the foregoing provision, since that provides that the commissioners shall appoint "some other person." (Haywood v. Wheeler, 11 JoJm. 432.) To prosecute overseers. — It is also the duty of the commissioners, whenever any resident of the town shall make complaint that any overseer of highways has refused or neglected to perform the duties imposed on him, and shall give or offer to such commissioners sufficient security to indemnify them against the costs, forthwith to prosecute such overseer for the penalty annexed to such refusal or neglect. (1 B. S. .'504, § 17.) In case the commissioners shall neglect or refuse to prosecute for such penalty, they forfeit the sum of ten dollars, to be recovered by the person making the complaint. {Id. § 18.) (For form of complaint and security, see Appendix Nos. 16 and 17.) 10. Miscellaneous Powers and Duties. Milestones. — "It shaU be the duty of the commis- sioners of highways of each town to cause mile-boards or stones to be erected, where not already erected, on the post-roads, and such other public roads in their town as they may think proper, at the distance of one mile from each other, with such fair and legible in- scriptions as they may think proper." (1 H. S. 603, § 5.) Guide-posts. — "The commissioners of highways of each town shall cause guide-posts, with proper inscrip- tions and devices, to be erected at the intersection of THEIR POWEES AND DUTIES. 123 all post-roads in their town; and at the intersection of such other roads therein as they may deem necessary." (1 ^. -Sr. 504, § 90 It is made the duty of the overseer to maintain and keep in repair, at the expense of the town, the guide- posts so erected. {Id. % 10.) Scraper, &c. — "The commissioners of highways, whenever they shall think it necessary or useful, may direct and 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 moneys arising from commutations and fines within such district." {Id. % 11.) ' ' In case such moneys shall be insufficient for the purpose, the deficiency shall be assessed by the over- seers upon the inhabitants of the district in the pro- portion they are respectively assessed on the assess- ment-roll of said town ; and if any one so assessed shall neglect or refuse to pay such assessment the same may be sued for and recovered by the overseer." {Id. § 12.) Fence viewers. — The commissioners of highways elected in every town, together with the assessors are, by virtue of their office^ fence viewers of their town. (1 B. S. 340.) The duty of fence viewers is laid down in 1 Revised Statutes, 353, as follows : Where two or more persons shall have lands adjoin- ing, each of them shall make and maintain' a just and equal proportion of the division fence between them in all cases, where each of such adjoining lands shall be cleared or improved. And where such adjoining t 124 THE LAW OF HIGHWAYS. lands shall border upon any of the navigable lakes, streams, or rivers within the State, it shall be and it is hereby made the duty of the owners thereof, to main- tain such division fence down to the line of low water mark in such lakes, streams and rivers. And wherever such adjoining lands one-half or more of which are improved, shall be bounded by or upon either bank of a stream of water not navigable, the the fence viewers of the town in which the same are situated, shall direct in the manner hereinafter men- tioned, upon which bank of such stream and where upon such bank, the division fence shall be located, and the portion thereof to be kept and maintained by each of such adjoining owners. (§ 30, as amended by chap. .635, Laws of 1871, and chap. 377, Laws of 1872.) Under this statute, each owner where the lands are not wholly cleared or improved, is bound to maintain his portion of the division fence so far as he uses it, that is, so far as it serves to fence any of his lands which are inclosed, whether cleared or improved or not ; but if, before he has contributed to the division fence or after he has built a portion of it, he chooses to let a part of his land lie open, and remove that part of the fence adjoining it, he may do so upon procuring the certificate of the fence viewers to that eflFect. {Cham- herlain v. Reed, 14 Hun, 408.) Where two or more persons shall have lands adjoining, and not within the provisions of section thirty, as hereby amended, each of them shall make and maintain a just and equal pro- portion of the division fence between them, except the owner or owners of either of the adjoining lands shall choose to let such lands lie open. If he shall afterward inclose it, he shall refund to the owner of the adjoining land a just proportion of the value, at that time of any division fence that shall have been made and main- COMMISSIONEES, THEIE POWERS AND DUTIES. 125 tained by such adjoining owner, or he shall build his proportion of such division fence.- (§ 31, as amended by Laws of 1871, chap. 635.) Any person occupying land, and interested in the making and maintaining a division fence, be his estate or interest in the premises what it may, is entitled to avail himself of the provi- sions of the statute in reference to division fences ; the remedy is not limited to the owner of the fee. {Bronk V. Becker, 17 Wend. 320.) Notice must he given. — Before a party can claim that he has chosen to let his land lie open under this section he must give the adjoining owner, or the fence viewers, notice that he has so chosen. {Perkins v. Perkins, 44 Barh. 184.) Lands lying open. — Where a person shall have cleared or improved lands lying open, he shall refund to the owner of adjoining land which is also cleared or improved, a just proportion of the value, at the time this act shall take effect, of any division fence that shall have been made and maintained by such adjoining owner between such cleared or improved lands, or he shall build his proportion of such division fence. Whenever a subdivision or new apportionment of any division fence shall become necessary by reason of the transfer of the title of either of the adjoining owners to the whole or any portion of the adjoining lands by conveyance, devise, or descent, such subdi- vision or new apportionment shall thereupon be made by the adjoining owners affected thereby ; and either adjoining owner shall refund to the other a just pro- portion of the value, at the time of such transfer of title, of any division fence that shall theretofore have been made and maintained by such other adjoining 126 THE LAW OF HIGHWAYS. owner, or the person from wliom he derived his title, or he shall build his proportion of such division fence. The value of any fence, and the proportion thereof to be paid by any person, and the proportion to be built by him, shall be determined by any two of the fence viewers of the town. (§ 32, as amended by Laws of 1871, chap. 635.) If dispute arises between the owners of adjoining lands, concerning the proportion or particular part of fence to be maintained or made by either of them, such dispute shall be settled by any two of the fence viewers of the town. (§ 33.) There may, it seems, be a valid prescription binding the owner of land to maintain perpetually the fence between him and the adjoining proprietor. In such case, the fence viewers have no jurisdiction. {Adams V. Van Alstyne, 25 N. T. R. 232.) How chosen. — When any of the above-mentioned matters shall be submitted to fence viewers, each party shall choose one ; and if either neglect, after eight days notice, to make such choice, the other party may select both. (§34.) Proceedings. ^-The fence viewers shall examine the premises, and hear the allegations of the parties. In case of their disagreement, they shall select another fence viewer to act with them, and the decision of any two shall be final upon parties to such dispute, and upon all parties holding under them. (§ 35.) The decision of the fence viewers shaU be reduced to writing, shall contain a description or the fence, and of the proportion to be maintained by each, and shall be forthwith fUed in the office of the town clerk. (§ 36.) 127 Refusal to. huild.—H any person liable to contribute to the erection or reparation of a -division fence, shall neglect or refuse to make and maintain his propor- tion of such fence, or shall permit the same to be out of repair, he shall not be allowed to have and main- tain any action for damages incurred, but shall be lia- ble to pay to the party injured all such damages as shall accrue to his lands, and the crops, fruit trees and shrubbery thereon, and fixtures connected with the said land, to be ascertained and appraised by any two fence viewers of the town, and to be recovered with costs of suit ; which appraisement shall be reduced to writing, and signed by the fence viewers making the same, but shall be only prima facie evidence of the amount of such damages. (§ 37.) If such neglect or refusal shall be continued for the period of one month after request in writing, to make or repair such fence, the party injured may make or repair the same at the expense of the party so neglecting or refusing, to be recovered from him with costs of suit. (§ 38.) Removal of fence. — If any person who shall have made his proportion of a 'division fence shall be dis- posed to remove his fence, and suffer his lands to lie open, he may do so, provided such .lands are not cleared or improved at any time between the first day of November in any one year aud the first day of April following, but at no other time, giving ten days' notice to the owner or occupant of the adjoining land of his intention to apply to the fence viewers of the town for permission to remove his fence ; and, if, at the time specified in such notice, any two of such fence viewers, to be selected as aforesaid, shall determine that such fence may, with propriety, be removed, he may re- move the' same. (§ 39.) 128 THE LAW OF HIGHWAYS. If any such fence shall be removed, without such notice and permission, the party removing the same shall pay to the party injured, all such damages as he may sustain thereby, to be recovered with cost of suit. (§ 40.) Fence destroyed, by floods. — Whenever a division fence shall be injured or destroyed by floods, or other casuality, the person bound to make and repair such fence, or any part thereof, shall make or repair the same, or his just proportion thereof, within ten days after he shall be thereunto required by any person interested therein. Such requisition shall be in writ- ing, and signed by the party making it. (§ 41.) If such person shall refuse or neglect to make or repair his proportion of such fence, for the space of ten days after such request, the party injured may make or repair the same at the expense of the party so refusing or neglecting, to be recovered from him, with costs of suit. (§ 42. ) Witnesses. — Witnesses may be examined by the fence viewers on all questions submitted to them ; and either of such fence viewers shall have power to issue subpoenas for, and to administer oaths to said witnesses, and each fence viewer and witness thus employed shall be entitled to one dollar and fifty cents per diem ; such fence viewers or a majority of them, shall determine what proportion thereof shall be paid by each of the parties interested in such division fence, and reduce their determination to writing, and subscribe the same and file it in the oflBce of the town clerk where such fence viewers shall reside ; the party refusing or neglect- ing to pay such fence viewers, or either of them, shall be liable to be sued for the same with costs of suit. (§ 43). OOMMISSIONEES, THEIE POWEES AISTD DUTIES. 129 As to the question cf tlie jurisdiction of fence View- ers in appraising damages see ClarTc v. Brown, 18 Wend. 213. Trespass through line fence. — Where two persons own lands adjoining, and there is a division fence be- tween them, one portion of which one of the parties is bound to repair, and the other portion the other party is bound in like manner to keep in repair, and the cattle of one of them escape from his field, through defect or insufficiency of that portion of the division fence which the latter is bound to keep in repair, he has no remedy, and if the cattle, while so upon his land, do him a damage, it is damnum absque injuria. {Gowles V. Balzar, 47 Bari. 562.) Efficiency of a fence.. — Whenever the electors of any town shall have made any rule or regulation pre- scribing what shall be deemed a sufficient fence in such town, any person who shall thereafter neglect to keep a fence according to such rule or regalation, shall be precluded from recovering compensation in any manner for damages done by any beast lawfully going at large on the highways, that may enter on any lands of such person not fenced, in conformity to the said rule or regulation, or for entering through any defect- ive fence. (§ 44.) When the sufficiency of a fence shall come in question in any suit, it shall be presumed to have been sufficient until the contrary be established. (§ 45.) Strays. — It is the duty of fence viewers under section 21 of 1 Revised Statutes, 351, to act as arbitrators where a question arises as to the value of any animal seized upon as a stray, and of the charges for keeping the same. • 10 130 THE LAW OF HIGHWAYS. Each fence viewer shall be entitled to receive six cents for every mile lie shall be obliged to travel, from his house to the place where such strays are kept, and twenty-five cents for a certificate of the charges ascer- tained by him ; such fees to be paid by the owners of the strays. {Id., §22.) Every person who shall deliver such note (being a notice to the town clerk of the seizure) and keep any stray described therein, shall, if the same be not sooner claimed and redeemed, between the first day of May and the twentieth day thereafter, give notice to one of the fence viewers of the town, whose duty it shall be to ascertain, according to the best of his knowledge and judgment, the reasonable charges for keeping such strays, a certificate whereof shall be given by him to the person applying for the same. The fence vieAvers shall be entitled to the like fees as provided, to be paid by the owner of the strays. {Id. § 23. See Overseers, their powers and their duties.) Damages to floating timber. — It is also the duty of fence viewers to ascertain, when required, the damage to floating timber, under 1 Revised Statutes, 698, as follows : Whenever any logs, timber, boards or plank in rafts or otherwise shall have been drifted upon any island in any one of the waters within this State, or upon the bank or shore of any such waters, the owner of such logs or other lumber, may take the same away, on his paying or tendering to the owner or possessor of the land on which the same shall have been drifted, the amount of the damages which such owner or pos- sessor shall have sustained by reason thereof, and which may accrue in the removal of such logs or other lumber. (§1.) COMMISSIONERS, THEIE POWERS AND DUTIES. 131 If the parties cannot agree as to the amount of such, damages, either party ai)ply to any two of the fence viewers of the town or city in which such lumber may be found, whose duty it shall be after hearing the proofs and allegations of the parties, to determine the same, at the expense of the owner of the lumber, and their decision shall be conclusive. (§ 2. ) The fence viewers, or either of them, shall have power to issue process for such witnesses as may be desired by either party, and to administer oaths to all witnesses produced before them. (§ 3.) The person delivering such note in writing, may de- tain the lumber described therein, until the owner thereof shall appear and pay the damages, if any, which such person shall be entitled to demand ; which damages shall be settled, in case of disagreement be- tween the parties, by the fence viewers in the same manner as above provided. (§ 6.) Before the clerk shall pay out any of said moneys, ' for the damages of the owner or possessor of the land, such damages shall be assessed by any two fence viewers of the city or town, and a specification thereof, signed by such fence viewers, shall be filed in the office of such clerk. (§ 9. ) Nothing contained in this title shall be construed to extend to that kind of lumber called drift wood. (§21.) Injury to sheep hy dogs. — The owner of any sheep or lambs that may be killed or injured by any dog, may apply to any two fence viewers of the town, or assessors of the city, or of the ward of the city, who shall inquire into the matter, and view the sheep injured or killed, and may examine witnesses in rela- tion thereto, for which purpose either of them shall have powerto administer oaths. If they are satisfied 132 THE LAW OF HIGHWAYS. that the same were killed, or hurt only by dogs, and in no other way, they shall certify such fact, the number of the sheep killed or hurt, and the amount of the damages sustained thereby by the owner, together with the value of the sheep hurt or killed. (1 Ji. S. 704, § 10, as amended by laws 1862, ch. 244.) The said certificate shall be presumptive evidence of the facts therein contained, in any suit that may be brought by the party injured, against the owner or possessor of any dog, if it shall appear on the trial of such suit that notice in writing, of the time and place of such view, shall have been served, at least twenty-four hours before, on the said owner or possessor, either person- ally or by leaving at his dwelling house, with a person who usually dwells therein, and who shall have arrived at the age of sixteen years. (§11.) By chapter 197, of the Laws of 1864, the taxes levied on dogs in the county of Ontario, is to be paid to the supervisor of the town, and constitute a fund for paying the damages arising in said town from dogs killing or injuring sheep, and if any balance remains in his hands at the end of the year it may, by vote of the electors, be applied in road and bridge repairing, or for contingent expenses. The owner or owners of any sheep or lambs that may be killed or injured by dogs, may apply to any two fence viewers of the town, who shall inquire into the matter and examine witnesses in relation thereto, for which purpose either of them shall have power to administer oaths, and if they shall be satisfied that the same were killed by dogs, and in no other way, they shall certify such fact, the number of such sheep killed and the number injured, the value of such sheep killed or injured, immediately previous to such killing or injury, together with the value of the sheep, after COMMISSIONERS, THEIR POWERS AND DUTIES. 133 being so killed or injured, together with the amount of their fees. {Id., § 3.) Such certificate shall be presented to the board of town auditors at their annual meeting for auditing town accounts, who shall have the same power in audit- ing or allowing the same as in regard to town accounts, and if such board shall be satisfied by the oath of the person claiming such damages that such claimant has not been able to discover the owner or possessor of the dog or dogs by which such damage was done, or that he has failed to recover his damages of such owner or possessor they shall give an order on the supervisor of the town for the amount which they shall allow, who shall pay such order out of the funds arising from the provisions of this act. {Id. § 4.) Whenever the board of supervisors of any county of this State shall, by resolution, declare that the provi- sions of this act shall be extended and made applicable to said county, the provisions of this act shall there- after be applicable to such county. {Id. § 7.) Water Commissioners. — The supervisor and the commissioners of highways of the several towns and the president of any incorporated village, as to lands within such village, shall be water commissioners of their respective towns ; and in addition to the powers now conferred by law upon them, they shall have the general charge and supervision of all the dams, drains, ditches and channels, made, completed, or constructed, in said towns under this act. Whenever it shall be necessary to open, deepen, repair, change, or do any work to maintain and keep in repair any such dams, ditches, drains or channels, and disputes shall arise between the owners of the lands, on which such dams, drains, ditches or channels are situate, regarding the 134 THE LAW OF HIGHWAYS. same, tlie said water commissioners, or a majority of them, shall take proceedings similar to those authorized hereby, to be taken and had for the construction of such works, and the said water commissioners are here- by invested for such purpose with the powers conferred upon original commissioners by this act. And where improvements of a nature and character similar to those hereby authorized, shall have been made under the provisions of anj^ special act, it shall be lawful for the county court of the county to cause the same here- after to be maintained, kept in repair and improved by the said water commissioners of tlie town or towns, under the provisions of this act. And the said water commissioners shall have like power and aiithority in all cases of sub-soil or tile draining, when such sub-soil or tile draining shall be, in their judgment, absolutely necessary for public or sanitary purposes, and the owner or occupant of any land which such owner or occupant shall be desirous of so draining for such pur- poses, shall have to cross the lands of another, in order to get an outlet, and the owners of such lands shall not be able to agree in regard thereto. And the said water commissioners shall have power and authority to make all such needful rules and orders in regard to such sub-soil or tile draining as shall be necessary to pro- mote and secure the proper drainage of all farming lands by the owners thereof, who shall desire to drain the same for public or sanitary purposes, without doing unnecessary injury to others, or to the public highways in which such drains may be discharged ; provided that, in all cases, where an easement for such drains shall be procured upon the lands of another, the said drains shall be neatly, safely, and expeditiously put down and covered, and the surface restored as nearly as may be to its original appearance ; and no COMMISSIOKERS, THEIR POWERS AND DUTIES. 135 drains authorized by this act shall be put across any dooryard, enclosed garden, orchard or vineyard, nor shall any tree or building be removed without the owner's consent. (Laws 1869, chap. 888, § 16.) Fire in forest. — Where the woods in any town are on fire, it is the duty of the commissioners to act with the supervisor and the justices of the peace in taking means to arrest- its progress. They are, severally, to order such and so many of the inhabitants of such town liable to work on the highways, and residing in the vicinity of the place where such fire shall be, as they shall deem necessary, to repair to the place where such fire shall prevail, and there to assist in extinguishing the same, or in stopping its progress. If any person so ordered shall neglect or refuse to com- ply therewith he shall forfeit and pay the sum of fifty dollars, and shall also be liable to fine or imprisonment, or both, at the discretion of the court. (1 R. 8. 697.) Majority may act. — Any two commissioners of highways of any town may make any order in the exe- cution of their powers and duties conferred by the stat- ute, provided it shall appear in the order filed by them that all the commissioners of highways of the town met and deliberated on the subject embraced in such order, or were duly notified to attend a meeting of the com- missioners for the purpose of deliberating thereon. (1 Ji. S. 525, § 125.) Where only two have met, care should be taken to make it clearly appear in the order that all the commissioners were duly notified to attend the meeting for the purpose of deliberating on the subject embraced in the order. A simple allegation-in the order that all have been duly notified to attend is insufficient. {Fitch v. Commissioners of Kirkland, 22 Wend. 132; People v. Williams, 2Q N. Y. B. 441.) 136 the law of highways. 11. Actions by or Against. The commissioner or commissioners of highways in each of the towns in this State are hereby empowered to bring any action against any railroad corporation that may be necessary and proper to sustain the rights of the public in and to any highway in such town, and to enforce the performance 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 consequence of any act or omission of any such corporation in viola- tion of any law in relation to such highway. (Laws 1855, ch. 255, § 1.) Nothing in the above act, however, is to be con- strued as in any manner impairing the rights of any person or officer to bring any action now authorized bylaw. (Id. ^2.) An action or special proceeding may be maintained by the commissioner or commissioners of highways of a town to enforce a liability created, or a duty enjoined by law, upon those officers, or the body represented by them ; to recover a penalty or a forfeiture given to those officers, or the body represented by them ; or to recover damages for an injury to the property or rights of those officers, or the body represented by them ; although the cause of action accrued before the com- mencement of their term of office. (Laws 1880, ch. 178, § 1926.) Action against commissioners. — An action or special proceeding may be maintained against the commis- sioner or commissioners of highways of a town, upon any cause of action, which accrues against them, or COMMISSIONERS, THEIE POWEES AND DUTIES. 137 has accrued against their predecessors in their official capacity, and within the scope of their authority. (Laws of 1880, chap. 178, § 1927.) The last two sections do not apply to a case where it is specially prescribed by law, that an action may be maintained, by or against the body, represented by an officer designated in those sections ; but, in such a case, the prosecution or defence of the action, as the case may be, must be conducted by the persons then in office, who represent that body. (Laws 1880, chap. 178, § 1928.) Commissioners may also sue for penalties incurred by corporations the same as against individuals. They may file a bill in the Supreme Court to enforce such penalties and prosecute the same to judgment. (Laws 1837, chap. 431'.) As a general rule all public officers, though not ex- pressly authorized by statute, have a capacity to sue commensurate with their public trust and duties. {Overseers of Pittstown v. Overseers of Plattshurgh, 18 John. 407 ; Todd v. Blrdsall, 1 Cow. 260, and note p. 261 ; and see Supervisors of Oalwayv. Stimson, 4 Hill, 136.) An implied authority is conferred on them to bring all suits, as incident to their office, which the proper and faithful discharge of their official duties requires. It seems, however, that an action on the case does not lie at the suit of the commissioners of highways against a turnpike company, for entering upon and taking possession of a public highway, and appropri- ating it to the use of the company previous to the ap- praisal payment of damages ; the remedy in such case is by indictment, summary abatement of the encroach- ment, or action for the penalty of treble damages given by statute. (Cornell v. Butternuts, &c., Turn- 138 THE LAW OP HIGHWAYS. pike Co., 25 Wend. 365.) The town or commissioners of highways have no property in the public roads which enable them, like an individual for an injury done to his freehold, or incorporated rights, to sustain a private action for damages done to him. The fee belongs to the owners of the premises through which the highways are laid, subject to an easement of way for the public use. This right of enjoyment is a piib- lic one, confined to neither town or county. It is upon this view that the remedies, in case of interruption, are given to the public by indictment, summary abate- ment or penalty ; private remedies are confined to the owner of the soil, or persons who have sustained a particular injury. {Id.) W here one contracts with a municipality to perform in its stead the duty resting upon it of keeping its streets in repair and safe for the passage of the public, an action arising through neglect so do, may be brought by the party injured directly against the contractor. (McMahon v. Second Ave. H. B. Co., 75 N. Y. B. 231.) Title of action. — In an action or special proceeding brought, pursuant to the foregoing sections of the code, the ofiicer by or against whom it is brought, must be described in the summons, or other process by which it is commenced, and in the subsequent proceedings therein, by his individual name, with the addition of his official title. An objection growing out of an admis- sion to join any officer, who ought to be joined with the others, must be taken by the answer, or in a special proceeding before the close of the case, on the part of the defendant ; otherwise it is waived. (Laws of 1880, chap. 178, § 1929 ; Gould v. Glass, 19 Barh. 179 ; Supervisors of Galway v. Stimson, 4 Hill 136 ; OOMMISSIONEES, THEIK POWEES AND DUTIES. 139 Boots Y. WasKburn, IQ N. T. R. 207.) In accepting a bridge constructed under a joint contract, made by the commissioners of several towns, each board acts for itself and an action wiU lie against the one without joining the other. {Harris v. Houck, 57 Bari. 619.) Action against successors. — When any contract shall have been entered into or any liability shall have been incurred, by or in behalf of the town, by the highway commissioners in the scope of their authority, the same remedies may be had against any successors of such commissioners, in their official character, as might have been had against siich officers, if they had continued in office. (Laws 1880, chap. 178, § 1927.) Thus, where they have given notes in their official character for liability incurred by them in behalf of the town, within the scope of their authority, the law gives the same remedy against their successors as might have been had against those who signed the notes, had they remained in office. {Potter v. Davis, Lalor' s Sup. 394.) Where, however, they have ex- ceeded their authority in entering into the contract, or in incurring the liability, such contracts or liabilities are not obligatory on their successors in office. (See Palmer v. Vandenhurgh, 3 Wend. 197; Silver v. •Cumonings, 7 Wend. 182.) The commissioners of highways have no power to contract a debt against the town by borrowing money for the repair of roads and bridges ; accordingly, where they borrow money for such purpose, on a note purporting to bind them in their official capacity, it was held that an action could not be maintained against their successors to recover the amount. {Bar- ker V. Loomis, 6 Hill 463 ; MatMr v. Crawford, 36 Barb. 564 ; Van Alstyne v. Freday, 41 N. T. B. 111.) 140 THE LAW OF HIGHWAYS. In such case the commissioners making the contract will be themselves personally liable. {Palmer v. Van- deriburgh, supra.) Abatement. — An action does not abate by any event if the cause of action survives. (Laws 1880, chap. 178, § 755.) Where an action or special proceeding is authorized or directed by law, to be brought by or in the name of a public officer, or by a receiver, or other trustees, appointed by virtue of a statute, his death or removal does not abate the action or special pro- ceeding ; but the same may be continued by his suc- cessor, who must, upon his application, or that of a party interested, be substituted for that purpose, by the order of the court, a copy of which must be an- nexed to the judgment-roll. {Id., § 766.) Appoirdment of successor. — In such an action or or special proceeding, the court must, in a proper case, substitute a successor in office, in place of a person made a party in his official capacity, who has died or ceased to hold office ; but such a successor shall not be substituted as a defendant, without his consent, unless at least fourteen days' notice of the application for the substitution, has been personally served upon him. {Id., § 1930.) This is not applicable to Justices' Courts. {Qolegroxe V. Breed, 2 Denio, 125.) Employing counsel. — The commissioners may em- ploy counsel in the preparation and trial of an indict- ment against any individual for obstructing a public highway, and to render other legal services in relation to matters connected with the control and management of highways ; such authority is incident to their offi- cial character. {Duntzv. Duntz, 44 Barb. 459.) And COMMISSIONEES, THEIK POWERS AND DUTIES. 141 if the commissioner advances money out of his own pocket to pay such attorney for his services, and takes an assignment of his claim, to himself individually, he may maintain an action thereon against his succes- sor in office. {Id.) On securities for penalties. — The commissioners are authorized to prosecute for the recovery of penalties for encroachments on highways (1 R. S, 526, § 130, 131 ; Laws 1880, chap. 178, § 1926), and are, of course, competent to adjust controversies in relation to such encroachments by amicable settlement. If in so doing they deem it advisable, in the exerfcise of a sound dis- cretion, to take security for the payment of money at a future day, it seems that there is no reasonable ob- jection to such an arrangement. {Gom/missioners of Oortlandmlle v. Peck, 5 Hill, 215.) On note for funds loaned.— The power of the com- missioners to loan the moneys in their hands and to enforce the collection of securities taken therefor, is fairly derivable from their general powers and duties. The commissioners are individually responsible to the town for the proper application of funds placed in their hands for public purposes ; and if they choose to take the risk upon themselves, by loaning the funds, the security taken will be valid, and a recovery may be had thereon in default of payment. Accordingly, in an action by the commissioners of highways upon a promissory note payable to them as such, the consid- eration of which was money loaned by them belonging to the public, it was held that they were entitled to recover. (Id.) On bonds of indemnity. — It is a general rule that public officers, acting under a statute authority, must 142 THE LAW OF HIGHWAYS. confine themselves strictly within the powers conferred by the act. Therefore, where some of the inhabitants in a village, being desirous to have one of the streets therein extended and opened, applied to the commis- sioners of highways of the town, who alone had power to make the improvements, and the commissioners consented to do it, but took a bond from the applicants, to indemnify the town against the expenses of the im- provements. In an action upon this bond, it was held that the action would not lie ; that the commissioners were authorized to lay out and open roads, when in their judgment the public convenience requires it ; but not, as the learned judge who delivered the opinion expressed it, " to be tampering with iiarties and making conditions." {Wehb v. Albertson, 4 Barb. 51.) The same rule has been recognized and applied by the Court of Appeals, in the case of Palmer v. Fort Plain, &c. Plank-road Co. (11 N. T. B. 376). Judgment, how collected.— Aa. execution, where a judgment is rendered against the commissioner or com- missioners of highways, may be issued against and collected out of the property of the officer, and the sum collected must be allowed to him, in the settlement of his official accounts, except as otherwise specially pre- scribed by law. (Laws of 1880, chap. 178, § 1931.) A judgment recovered against a commissioner of highways for injuries resulting from his neglect to keep the highway in repair cannot be made a town charge. {People v. Town Auditors Esopus, 74 N. Y. R. 310.) commissioneks, theie poweks and duties. 143 12. May Consent to Use oe Highway by Kailboad Company. Whenever any association or individual shall con- struct a railroad upon land purchased for that purpose, on a route which shall cross any road or other public highway, it shall be lawful for the commissioners of highways, having the supervision thereof, to give a written consent that such railroad may be constructed across, or on such road or other public highway ; and, thereafter, such association or individual shall be authorized to construct and use such railroad across, or on such roads or other highways as the commission- ers shall have permitted ; but any public highway thus intersected or crossed by a railroad, shall be so restored to its former state as not to have impaired its usefulness. (Laws 1835, chap. 300.) (See form of consent, form No. 18. ) The consent of the commissioners of highways to the use of a highway by a raUroad company, or the author- ity conferred' in the above provision, on railroad com- panies to construct their railroads across, or on roads and highways after having acquired such consent, relate only to the public property in the road — the public use and enjoyment of it — without intending to interfere with any private or individual interest that might be concerned. [Fletcher v. Auburn, &g., Hail- road Co., 25 Wend. 462; Davis v. Mayor of New York, 14 N. Y. E. 521.) The owner of the fee is enti- tled to every use and enjoyment of the highway, not inconsistent with the public easement. A railroad company cannot, even with the consent of the high- way commissioners, or by authority from the Legisla- ture, enter upon and appropriate a highway for pur- poses other than those for which such highway was 144 THE LAW or HIGHWAYS. established, without first making a just compensation therefor to the owners of the fee. {Id. Williams v. N. T. Central R. B. Co. 16 iV. T. R. 97.) Such an appropriation of a highway by a railroad company is the imposition of an additional burden, and is a taking of the property of the owner of the fee within the meaning of the constitutional provision which forbids such taking without compensation. {Id.) The railroad company can, therefore, acquire no title under the license or consent of the commis- sioners of highways, without also obtaining the con- sent of the owner of the fee, or appraising and paying the damages in the mode provided by law. {Id. ) We shall have occasion to consider this subject further, under the head of Railroads in Highways and Streets. 13. Mat Agree with Plankeoad or Turnpike Company for use of Highway. Whenever it shall become necessary for any plank- road or turnpike company to use any part of a public highway for the construction of their road, the super- visor and commissioners of the town in which such highway is situated, or a majority, if there be more than one such commissioner, may agree with such company upon the 'compensation and damages to be paid by said company for taking and using such high- way. Such agreement shall be in writing, and shall be filed and recoi'ded in the town clerk's office of such town. (See form No. 19.) In case such agreement cannot be made, the com- pensation and damages for taking such highway shall be ascertained in the same manner as the compensation and damages for taking the property of individuals. Such compensation and damages shall be paid to the COMMISSIONEES, THEIE POWEES AND DUTIES. 145 said commissioners, to be expended by them in im- proving the highways of such town. (Laws 1847, chap. 210, § 26 ; see also Laws 1847, chap. 398, § 4.) But the supervisor and commissioners cannot make the agreement as above provided, without the plank-road or turnpike company shall first have obtained the consent in writing of at least two-thirds of all the owners of land along such highway, who shall actually reside on that part of the highway on which such plank-road or turnpike road is to be constructed. (Laws 1850, chap. 71, § 5.) After such turnpike or plank-road company has pro- cured by agreement from such supervisor and commis- sioners of the town, the right to take and use any part of the highway necessary for the construction of their road, such company may proce*^d to construct its road on such highway, without making application to the board of supervisors as was required by section 4, of chapter 210, of the Laws of 1847. (Laws 1847, chap. 398, § 1.) The above provision authorizes the supervisor of the town and . commissioners of highways, to agree with the turnpike or plank-road company upon the com- pensation and damages to be paid for taking and using a highway. The consideration must be a pecuniary fcompensation and damages to be paid to the commis- sioners, for the improvement of roads. It does not authorize those officers to release and grant to the company, the public right to a highway, without a pecuniary consideration not to convey such public right upon ronditions. Thus, where the right to take and use a highway for the construction of a plank- road, was granted, in consideration of the public 'ben- efit to result therefrom, and upon conditions that no gate should be erected or tolls demanded on such road, 11 146 THE LAW OF HIGHWAYS. witMn three miles of a certain point, and the company, after taking possession of the highway under the agreement, proceeded in violation of such agreement, to erect such toll-gates within the prescribed limits, and an action was brought to compel the company to perform it ; it was held, that the action would not lie. {Palmer v. Fort Plain, &c., Plank-road Co., 11 N. T, R. 376.) The public has only an easement in a highway — the fee belonging to the owner of the adjacent lands — and a turnpike company by a deed from the commissioners of highways, will take nothing more than a right of passage. {The Northern T. R. Co. v. Smith, 15 Barb. 855 ; Townof FishMll v. Fishkill Plank-road Co., 22 Barb. 634.) 14. Mandamus Against. Where the commissioners of highways neglect or refuse to perform a duty enjoined on them, they may be compelled to do it by mandamus. A mandamus is defined to be a prerogative writ issuing in the name of the King, from the court of King' s Bench, and directed to any person, corporation, or inferior court of judica- ture, requiring them to do some particular thing which appertains to their oflBce and duty. (3 Black. Com. 110. ) In this State the writ would issue in the name of the people from the Supreme Court. The power of the Supreme Court to gran,t a man- damus, at the suit of the people, to coBipel commis- sioners of highways to perform their duty has often been exerted, and cannot be questioned. ( The People V. Commissioners of Salem, 1 Cow. 23 ;. The People v. Collins, 19 WeTid. 65.) Where the duty to be per- formed by the commissioners is judicial,, they may bs COMMISSIONEKS, THEIR POWERS AND DUTIES. 147 compelled, by mandamus, to meet and decide on the matter, but cannot be controlled as to the manner in which they shall decide ; where the duty is ministerial they may be compelled to do the act which they are charged with unlawfully refusing to do. {People V. Taylor, 30 Houo. 78.) It is well settled that where the commissioners have a discretion in the perform- ance of their duty, and proceed to exercise it, that discretion cannot be controlled by mandamus. But if they refuse to act or to entertain the question for their discretion incases where the law enjoins upon them to do the act required, . the court may enforce obe- dience to the law by mandamus, where no other legal remedy exists. {Judges Oneida C. P- v. People, 18 Wend. 96, and cases ; People v. Contracting Board, 27 N. T. R. 378 ; 33 JST. T. R. 382.) A mandamus will lie to compel the commissioners to lay out and discontinue a highway. Thus, where the judges, on reversing the decision of the commis- sioners, refusing to discontinue one road and lay out another, ordered them to proceed and lay out and open the one road and to discontinue the other. It was held that obedience to the order could be compelled by mandamus. {People v. Commissioners of Salem, 1 Cow. 23.) So, a mandamus lies to compel commis- sioners to open so much of a road laid out by judges, as has not been discontinued on a subsequent petition, although a certiorari is pending from their determina- tion discontinuing a part of such road, {Hx parte Sanders, 4 Cow. 544.) So, when special commissioners were appointed by the Legislature to lay out a highway on the most direct and eligible route, commencing "at or near" the village of E., running in a southwesterly direction and terminating "at or near" the house of W. ; and 148 THE LAW OF HIGHWAYS. the road was laid out by such special commissioners, commencing at the distance of sixty rods from the vil- lage, in a field where there was no road with which the new road could be connected, and the route, instead of being the most direct and eligible, was injudicious ; yet, notwithstanding these facts, the court awarded a peremptory mandamus to the commissioners of high- ways of a town through which the road was laid out, to proceed forthwith to open and work the road as laid out by the State commissioners. {People v. Collins, 19 Wend. 56.) So where the commissioners of highways, on due application, refuse to lay out a road, and their determination is reversed on appeal, the judges or referees may proceed to lay out the road ; and if the commissioners refuse to open the road so laid out a mandamus lies. {People v. Champion, 16 John. 61.) Where the Legislature passed an act requiring com- missioners of highways to build a bridge over a creek, " upon or near the site " of the old bridge which had been erected upon, and in connection with, a public highway ; and a majority of the commissioners, under the authority given them by the act, to fix the site of the new'bridge, left the highway, and built the bridge a quarter of a mile up the stream, held, that the com- missioners went beyond their power, and that a man- damus, directing them to proceed and erect the bridge upon the site thus selected, could not be issued. {Peo- ples. Finger, 24 Barb. 341.) Since the act of 1847 (Laws 1874, p. 580), appeals from the determination of commissioners of highways laying out, altering or discontinuing, or refusing to lay out, alter or discontinue any road, are to be heard and determined by referees appointed by the county judge. Such referees have all the power, and are charged with all the duties formerly possessed by the judges of Com- COMMISSIONERS, THEIE P0WEE8 AND DUTIES. 149 mon Pleas ; on reversing the determination of the commissioners, they should make such order in relation to laying out, altering, or discontinuing of the highway as in their judgment the commissioners should have made ; and obedience to such order on the part of the commissioners may be compelled by mandamus. But if they simply reverse an order refusing to lay out a highway, without giving further directions, the com- missioners are not bound to lay out the highway, and a mandamus will not be granted to compel them to do it. {People V. Goimnissioners of Highways, 8 -N. Y. R. 476.) A mandamus to compel commissioners to open a road should not be resorted to where its necessary effect would be to subject them to an action of trespass ; as where they have exceeded their jurisdiction in laying out such road. If, therefore, the facts shown on the application are of a character to establish a want of jurisdiction, so as to make the proceedings entirely void, they furnish a sufficient ground for not awarding a mandamus, unless for some good reason the .parties are estopped from inquiring into these facts. {People V. Commissioners of Seward, 27 Barh. 94 ; Ex parte Clapper, 3 Hill, 458.) Nor will mandamus lie to com- pel the commissioners to repair the roads and bridges, unless they have funds for that purpose. {Oarling- house V. Jacobs, 29 N. T. H. 303, and cases cited.) A mandamus to commissioners will be granted with- out' regard to the near approach of the expiration of their term of office ; when the term of office expires, their successors must obey the command of the writ. {People V. Collins, 19 Wend. 56.) The writ need not in the first instance be directed to the commissioners by their individual names ; it is only in case of disobe- dience to the writ that they are to be proceeded 150 THE LAW OF HIGHWAYS. against personally. {People y. C7iampion, 16 John. 61.) 15. Injunction Against. Where the law gives to officers a power which implies and requires the exercise of a sound judgment and discretion, the correction of their errors belongs to the Supreme Court as a matter of legal, and not of equitable cognizance, and an injunction will not be proper. {Thompson' s Pro. Rem. 309.) An injunc- tion cannot be granted to restrain commissioners of highways from carrying out an order made by them, removing an encroachment, whether on the ground that they had not jurisdiction, or that their decision was unjust or irregular. The remedy in such cases is by certiorari. {Hyatt v. Bates, 35 Barh. 308.) So, an injunction is not the proper remedy in a case where the commissioners would have the right to lay out a highway, but fail to acquire jurisdiction, or where their proceedings are irregular. {Albany Northern Railroad Co. v. Brownell, 24 JV. Y. R. 345.) But where the commissioners have no right to lay out a road, as through a buiding, yard or enclosure, it seems an injunction may be had. Thus, where the com- missioners were proceeding to lay out a highway through grounds acquired by a railroad company for the site of an engine house, and which were necessary for its use at a station, an injunction was granted. {Id.) A court of equity has no right to inquire into the proceedings of subordinate tribunals of special or local jurisdiction, with a view to set them aside, if void at law, or for the purpose of staying or restraining such proceedings, and therefore has no right to declare the assessment and levying of a tax void, or to restrain the COMMISSIONERS, THEIR POWEES AND DUTIES. 151 collection of the same. , {Thatcher v. Dusenhury, 9 Howard, 32.) The commissioners of highways of a town, have no power to bring an action to enjoin the construction of a permanent obstruction in the highway. {CoyTten- dall V. Burkee, 13 Hun, 260.) 16. To Deliver Books, Papers and Moneys to Successors. At the expiration of the term of office of a commis- sioner of highways, it is his duty when requested, to deliver upon oath to his successor, all the records, books and papers in his possession or under his control belonging to the office, and, at . the same time, to pay over to such successor the balance of moneys remain- ing in his hand, as certified by the auditors of town accounts. (1 R. S. 359.) The oath above mentioned may be administered by the officer to whom such delivery is made. {Id. ) In case of the death of such commissioner, it is made the duty of his executors or administrators. to make such delivery upon like oath. {Id.) If such commissioner, or in case of his death, his executors or administrators shall neglect or refuse, when lawfully requested to make such delivery, he shall forfeit to the town, for each offence, the sum of two hundred and fifty dollars, and shall be deemed guilty of a misdemeanor. (1 B. S.359, § 13 ; Id. 125.) Delivery, how compelled. — The person entitled to receive such books, papers, etc. , may compel a deliv- ery of them in the, manner following : He may make complaint of such refusal or neglect to any justice of the Supreme Court, or the county judge of the county where the person so refusing shall reside, and if such 152 THE LAW OF HIGHWAYS. officer shall be satisfied, from the testimony offered, that any such books or papers are withheld, he shall grant an order directing the person so refusing to show cause before him, within some short and reasonable time, why he should not be compelled to deliver the same. If upon an inquiry before such officer, the per- son charged with withholding such books or papers shall make affidavit that he has truly delivered over to his successor all such books and papers in his cus- tody, or appertaining to his bffice, within his know- ledge, all further proceeding before such officer shall cease, and the person complained against shall be dis- charged. If he does not m'ake such oath, then the officer shall, by warrant, commit such person to the jaU of the county, there to remain until he shall de- liver such books and papers, or be otherwise dis- charged according to law. (1 B. S. 125.) In case the person complained against shall not make such oath, such officer may, if required by the complainant, issue a warrant to a sheriff or constable, commanding him to search in the day time such places as shall be designated in such warrant, for such books and papers, and to seize and bring them before him. If the officer, upon examining such books and papers, shall conclude that they appertain to the office of com- missioner of highways, he shall cause them to be de- livered to the complainant. (Id.) The same proceedings may be had against any third person who shall come in the possession of such books and papers and refuse or neglect, upon a proper de- mand, to deliver them to the successor_of the commis- sioner. (1 Ji. S. 125 ; for forms herein, see Appendix Nos. 20, 24.) commissioners, theik powers and duties. 153 17. Fees of Commissioners. The commissioners of highways and assessors in any town in this State shall be allowed the sum of two dol- lars per day, for each day actually and necessarily spent in the discharge of their official duties. (Laws 1870, chap. 242.) Where highway commissioners act as plank-road inspectors, their fees shall be two dollars for each day actually employed in such service, to be paid by the corporation or persons whose road shall be so in- spected by said officers, in case they shall order said toll-gate or gates to be thrown open, but otherwise to be charged, audited and paid in the same manner as the other fees and expenses of commissioners of high- ways. (Laws 1877, chaj). 164.) 154 THE LAW OF HIGHWAYS. CHAPTEK V. OVERSEEES, THEIE POWERS AND DUTIES. 1. Appointment and qualifieation. | 3. Penalties on overseer. 2. General duties. I 4. To account annually ; compensation. 1. Appointment and Qualification. By chapter 503 of the Laws of 1880, amending chap- ter 522 of the Laws of 1865, the commissioner or com- missioners of highways in each town of this State shall have the power, and it shall be their duty, within one week after such annual town meeting, by an in- strument under their hand or hands, to be filed with the town clerk, to appoint as many overseers of high- ways in their respective towns as there are road dis- tricts therein, which overseer shall be a freeholder un- less by petition as hereinafter provided, unless there are no freeholders in such district, to hold their office during one year ; but, in making such appointment, it shall be the duty of such commissioner or commis- sioners to appoint such person, whether freeholder or not in any such district, as may be suggested or nom- inated by a written petition, signed by residents of such district, representing three-fifths of the number of days' work assessed in such district for the next preceding year. And it shall b- tlie duty of the town clerk to notify each overseer of his appointment, as now required by law in case of elections ; and all pro- visions of law now applicable to overseers of highways OVEBSEEES, THEIE POWERS AlfD DUTIES. 155 heretofore elected under the provisions of the sections above amended shall apply to overseers of highways appointed under the provisions of this act. Must he an elector.— 'No person is eligible to the office of overseer, unless he is an elector of the town for which he shall be appointed. (1 R. 8. 345.) Vacancy, how filled. — If any person appointed to the office of overseer of highways shall refuse to serve, or if his office shall become vacant, the commissioners of highways shall, by warrant under their hand, ap- point 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 other overseers. (1 It. 8. 504.) This does not autho- rize the commissioners to reappoint the same person, after his neglect or refusal to serve on the first appoint- ment. They are to appoint some other person in his stead. (Haywood v. Wheeler, 11 John. 432 ; see form No. 15.) Manner of appointing. — The commissioners should all be notified to attend the meeting, and the object thereof should be fully set forth in the notice. Two of them may sign the order appointing the overseers for the several districts, or to fill any vacancy. But it must appear in the order that all the commis- sioners met and deliberated on the subject embraced in the order, or were duly notified to attend the meet- ing for the purpose of deliberating thereon. (1 B. 8. 525.) The order must be definite and certain in this respect, and not leave anything to be implied. If it.be made by two, and merely states that the third commissioner 156 THE LAW OF HIGHWAYS. * "was duly notified," without showing that the object of the meeting was also set forth in the notice, it will be void. {Fitch v. Commissioners of Kirkland, 22 Wend. 132 ; see Marble v. Whitney, 2SN. T. R. 297.) Order to be filed.— The order must be in writing, and must forthwith be filed with the town clerk by the commissioners. (1 H. 8. 504.) Notice of appointment. — Within ten days after such order is filed in the town clerk's office, such town clerk must transmit to each person appointed overseer, a notice of his appointment. (1 R. 8. 344 ; Laws 1855, chap. 522, § 7.) (See form No. 25.) No notice of acceptance necessary. — Previous to 1868 every person so appointed, within ten days after he was notified of his appointment and before he en- tered on the duties of his office, was compelled to file in the office of the town clerk, a notice in writing, sig- nifying his acceptance of the office, and a failure to so file such notice, was deemed a refusal to serve. (1 R. 8. 345.) But by chapter 791 of the Laws of 1868, the appointment of overseers of highways by the commis- sioners of highways, as prescribed in section 7 of chapter 522 of Laws of 1865, and the notice therein prescribed to be given by the several town clerks to the persons so appointed, shall constitute the several persons thus appointed overseers of highways in their respective districts or wards ; and no acceptance of the office or appointment as overseer shall be necessary to authorize the persons so appointed to perform the duties required of, and enjoined upon overseers of highways. The persons so appointed shall continue to be over- OVEKSEEBS, THEIE POWERS AND DUTIES. 167 seers of highways in their respective districts or wards, until their successors shall be appointed. Nevertheless, the better practice is to file the usual acceptance, and inform the commissioners of the in- tention to serve, or the refusal so to do. (See form No. 26.) Penalty for refusing to serve. — If any person ap- pointed to the office of overseer of highways, either to fill a vacancy or ■ otherwise, shall refuse to serve, he shall forfeit to the town the sum of ten dollars (1 R. 8. 347), to be recovered by the commissioners, and by them applied in improving the roads and bridges. (1 B. S. 526.) 2. General Duties. It shall be the duty of overseers of highways in each town : 1. To repair and keep in order the highways within the several districts for which they shall have been chosen. 2. When so required by the commissioners of high- ways, or any one of them, to warn all persons assessed to work on the highways in their respective districts to 'come and work thereon. 3. To cause the noxious weeds on each side of the highway within their respective districts to be cut down or destroyed twice in each year, once before the first day of July, and again before the first day of Sep- tember ; and the requisite labor shall be considered highway work ; and 4. To coUect all fines and commutation money, and to execute all lawful orders of the commissioners. (1 H. S. 503.) 158 THE LAW OF HIGHWAYS. The fines are, for remaining idle or not working faithfully, or hindering others from working ; for refusing to work, if he was required to furnish a team, carriage, man or implements, and wholly refuses ; for omitting to furnish a cart, wagon or plough ; for omit- ting to furnish a pair of horses or oxen, and for omit- ting to furnish a man to manage the team. (See Per- formance of Highway Labor.) Removing stones, etc. — It shall be the further duty of the overseers of highways, once in every month, from the first day of April until the first day of December, to cause all the loose stones lying on the beaten track of every road within their respective districts to be removed ; and to cause the monuments erected, or to be erected as the boundaries of highways, to be kept up and renewed, so that the extent of such roads may be publicly known. (1 R. 8. 503.) Subordinate to commissioners. — "The overseer," says Chancellor Kent, in Bartlett v. Crazier (17 John. 447), " is a mere subordinate agent to execute the orders of the commissioners of highways, and his duty so far consists principally in warning persons to work, and in collecting fines and commutation money. It is, indeed, said to be the duty of overseers to repair and keep in order the highways, but the first section {ante p. 76) has already made it the duty of the commissioners to give directions relative to the repairing of roads and bridges, and to cause the highways and bridges to be kept in repair. It cannot have been intended to be the equal and concurrent duty of the commissioners and the overseers to do the same thing, for their orders and acts might interfere and come in collision with each other. All the powers of the overseers must, THEIK POWERS AND DUTIES. 159 therefore, be taken to be subordinate to, and under tlie superior control of, the orders of the commissioners, whom they are bound to obey. It is further to be observed that the duty of the overseers in these two sections is confined to the highways ; and it is the com- missioners alone who are directed to keep in repair bridges as well as highways. The overseers have no concern with bridges erected over streams, except so far as they are directed generally to execute the orders of the commissioners." To remove obstructions^ &c., without orders. — Some of the duties of overseers are to be performed without any special order or directions from the commissioners ; it is their duty, among other things, to keep the road in repair, to destroy noxious weeds, to collect fines and commutation money, and to remove loose stones from the beaten track- of the road, without any special order from the commissioners. But it would seem that they are not to warn persons assessed to work without being required by the commissioners to do so ; but this requi- sition relates to the general warrant or assessment roll directed to them by the commissioners. The overseer is likewise bound to remove all obstructions from the highways within his district, without special direction so to do from the commissioners ; and a neglect to perform his duty in this respect subjects him to the penalty attached. {WFadden v. Kingsbury, 11 Wend. 667.) Duty in repairing roads. — The overseers, in repair- ing and keeping in order highways, are subject to the orders of the commissioners, but they are not relieved from the duty in the absence of such orders. For any neglect of such duty, it is no answer to say that the 160 THE LAW OF HIGHWAYS. commissioners have the care and superintendence of the highways, and give the direction for the repairing of roads and bridges ; it is none the less the duty of the overseers to repair and keep in order the roads in their districts ; they are bound to do it, whether they receive special instructions or not. (W Fadden v. Kingsbury, 11 Wend. 667.) They are to keep the highways in a proper state of repair, and free from all obstruction or defects in the road bed which vigilance and care can detect and remove. ( Wendell v. Mayor of Troy, 39 Barh. 335.) It is their duty to provide a pathway for carriages of suitable widtli, and to so de- fine it that there shall be no reasonable danger of its being mistaken ; but they are not required to grade the whole space within the limits of tlie highway so that travellers can safely drive over every part of it. Where a road is so constructed or altered as to present at one point two paths, both of which exhibit the appearance of having been used by travellers, and one of them leads to a dangerous precipice, while the other is quite safe, it is the duty of the overseer to indicate, in a manner not to be mistaken by day or night, that the unsafe path is to be avoided ; and if it cannot be otherwise done to put up such an obstruction as will turn the traveller from the wrong track. {Ireland v. Oswego, &c.. Plank-road Go. 13 N. Y. R. 531.) Their duty as to repair of roads does not extend merely to the bed of the roads, but they are also to provide proper guards or railings on their sides or borders, where neces- sary for the safety or protection of the public. {Hyatt V. Trustees of Rondout, 44 Barb. 391.) An overseer may take material from the side of the highway for repairs. {Anderson v. Van Tassel, 5^ N. Y. R. 631.) One who gave gravel to an overseer for a road, cannot recover the value thereof. {Byron v. Blakeman, 22 Barh. 336.) OVERSEERS, THEIE POWERS AND DUTIES. 161 Bridges. — The duties of overseers is confined to highways ; they have no concern with bridges erected over streams, except so far as they proceed under the special order of the commissioner. It is the business of the commissioners to Iteep the bridges in repair, either by direct personal action and supervision, or by orders to the overseers. (Bartlett v. Crozier, 17 John. 447.) What shall be deemed a bridge in this connec- tion must depend upon the circumstances of each case. While it is not the duty of overseers, without special orders, to repair bridges over large streams, yet cul- verts or sluices over small brooks or streams, and even bridges of some extent in a road district are undoubt- edly under the care of the overseers, and are to be by them repaired without special directions. Not hound to repair without funds. — There is no duty attaching to overseers to repair roads, until they are supplied with the necessary funds wherewith to make such repairs, and they are, therefore, not liable to private action for any damage that may arise from the roads in their district being out of repair, unless they have the requisite means to make the repairs. {Garlinghouse v. Jacobs, 29 N. T. It. 297 ; People v. Adsit, 2 Hill, 619 ; BarTcer v. Loomis, 6 id. 463 ; Bartlett v. Crozier, 17 John. 447.) And it is thought that they are not liable to such action, even when they have the requisite funds wherewith to make such re- pairs. {Garlinghouse v. Jacobs, supra, per Weight, J.) In most of these cases, the question was, as to the liability of commissioners, but the principle is equally applicable to overseers. So, no civil action will lie against an overseer, at the suit of an individual for an injury sustained, in con- sequence of the neglect of the overseer to keep a 13 162 THE LAW OF HIGHWAYS. bridge in repair. (Bartlett v. Grozier^ 11 John. 447.) But a party injured by reason of a road' s being out of repair, can sue for the penalty imposed by tbe statute for neglect or breach of duty ; so, also, for an injurjr sustained by reason of a bridge being out of repair, where it is shown that the commissioners had given specific orders for the repair of such bridge, and that the overseers had the funds necessary to make such repairs. (See Bartlett y. Crozier, supra.) Indictment. — An indictment will lie against over- seers for a willful neglect to keep the roads in repair, within the provision of 2 Revised Statutes, 696, § 38, which declares, that where any duty is or shall be en- joined by law upon any public officer, or upon any person holding any public trust or employment, every willful neglect to perform such duty, where no special provision shall have been made for the punishment of such delinquency, shall be punishable as a misde- meanor. Guide-posts and mile hoards. — It is also the duty of overseers to erect guide-posts and mile boards, with proper inscriptions and devices at the intersection of roads, when ordered so to do, and to maintain and keep in repair such guide-posts at the expense of the town. (1 R. S. 503.) If any person shall destroy, remove, injure or deface such mile boards or guide- posts, he shall forfeit for each offence the sum of ten dollars, and be deemed guilty of a misdemeanor, and on conviction, shall be fined not exceeding fifty dol- lars, or imprisoned not exceeding three months, at the discretion of the court. (1 R. S. 526, § 128.) Scraper and plough. — Every overseer is also, when OVERSEEES, THEIE POWERS AND DUTIES. 163 ordered by the commissioners, to purchase a good and siifl&cient iron or steel shod scraper and plough, or either of them, for the use of his road district ; to be paid for by the moneys arising from commutations and fines within his district. In case such money shall be insufficient for the purpose, the deficiency shall be assessed by the overseer upon' the inhabitants of the district in the proportion they are respectively assessed on the assessment roll of said town ; and if any one so assessed shall neglect or refuse to pay such assessment, the same may be sued for and recovered by the overseers. (1 M. S. 504.) (For form of assess- ment, see Appendix No. 27.) They are not obliged to erect mile boards, guide posts, or to procure a scraper or plough, unless directed and empowered by the commissioners to do so ; and if prosecuted for the penalty for refusal or neglect to procure such scraper or plough, or to erect such guide posts and mile boards, the order directing them so to do must be strictly proved, as it is the foundation of the action. (McFadden v. Kingsbury, 11 Wend. 667.) Strays. — By chapter 178, of the Laws of 1880, where one or more cattle, horses, colts, asses, mules, swine, sheep or goats are found running at large, or being herded or pastured, in a public street, highway, park or place, elsewhere than in a city, the overseers of highways of the road district, or if they are so found within an incorporated village, the street commissioner thereof, having personal knowledge or being notified of the fact, must immediately seize the animal or ani- mals, and keep it or them in his possession, until dis- posed of as prescribed in the following sections of this title. ,(§3084.) 164 THE LAW OF HIGHWAYS. Must file petition. — An officer or other person, who seizes an animal or animals, as prescribed in either of the last two sections must immediately file, with a justice of the peace of the town in which the seizure was made, a written petition verified by his oath ; setting forth the facts, which bring the case within either of those sec- tions ; briefly describing the animal or animals seized ; stating either the name of the owner, or that his name is not known to the petitioner and cannot be ascertained by him with reasonable diligence ; and praying for a final order, directing the sale of the animal or animals seized, and the application of the proceeds thereof as prescribed in this title. Where the petition alleges, that any animal or animals seized, were then trespass- ing upon real property owned or occupied by the petitioner, it must state the amount of the damages, if any, which the petitioner has sustained thereby. In that case the decision of the justice, or, where the issues are tried by a jury, the verdict must fix the amount of the damages. {Id. § 3086 ; see form No. 89.) The petition having been presented, the justice must issue a precept thereon, to all persons interested in the animal or animals, to show cause at a time and place specified why the prayer of the petition should not be granted (§ 3087), which must be served in like manner as a summons, where it is directed to any particular person. Where it is directed generally to all persons having an interest, it may be served by a constable, or by an elector of the town, if specially authorized by the justice, by posting a copy in six public places in the town, one being the nearest school-house. (§ 3088. ) Proof must be made of service, and a trial had, or if no person appears, the justice directs the sale of the animals at public auction. (§ 3089 to § 3091, inclusive.) The proceeds of the sale must be applied. THEIE POWERS AND DUTIES. 165 1. To pay the costs of the petitioner. 2. To pay the justice one dollar for each animal sold. 3. To the officer or other person making the seizure, the following fees for the seizure of each animal seized and sold, to wit : one dollar for each horse, colt, ass, or mule ; fifty cents for each buU, ox, cow, or calf ; and twenty -five cents for each goat, sheep, or swine ; together with a reasonable compensation fixed by him for the care and keeping of each animal, from the time of the seizure to the time of sale ; and also the dam- ages to the property trespassed upon, as ascertained by the decision of the justice, or the verdict of the jury. (§ 3092.) The disposition of the surplus, etc., is set forth in § 3093 to § 3115, inclusive. List of inhabitants. — Each of the overseers of high- ways shall deliver to the clerk of the town, within sixteen days after his election or appointment, a list subscribed by such overseer of the names of all the inhabitants in his road district who are liable to work on the highways. This list is to be delivered by the town clerk to the commissioners, and is to be used by them as a basis of their assessments for highway labor. (1 R. S. 606.) The omission of an overseer of highways, to deliver to the town clerk, this list, does not, it seems, avoid the assessment, made against persons so liable, by the commissioners. {Rinehart v. Young, 2 Lans. 354.) This list is to include the names of all persons, male or female, owning or occupying lands in the road dia- trict, and of every male inhabitant above the age of twenty-one years residing in the district when the list is made. (1 R. S. 505, § 19.) It need not, however, include the names of ministers of the gospel, nor of 166 THE LAW OF HIGHWAYS. priests of any denomination, nor of paupers, idiots or lunatics, unless they are land owners, since they are excepted from the number of persons that are to be assessed for per capita highway labor. (1 R. S. 507, §24.) But the names of ministers and priests should not ' be omitted unless they are engaged in religious teach- ing as a business. Those who have abandoned or re- tired from the calling, and those who do not make it a profession, but only teach or exhort occasionally, are not entitled to such exemption. Nor is it essential that the list contain the names of non-residents own- ing land in the district, since it is the duty of the com- missioners to prepare a list of them ; but it would be well for the overseers to add to their lists the names of such non-residents that the commissioners may have all needful information on the subject. (See form No. 28.) 3. Penalties on Overseers. Every overseer of highways who shall refuse or neg- lect either : 1. To warn the people assessed to work on the high- ways, 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 commutations ; or, 3. To perform any of the duties required by this chapter, or which may be enjoined on him by the com- missioners of highways of his town ; and for the omis- sion of which a penalty is not hereinafter provided, shall for every such refusal or neglect, forfeit the sum of ten dollars, to be sued for by the commissioners of highways of the town ; and when recovered, to be OVERSEEES, THEIR POWERS AND DUTIES. 167 applied by them in making and improving the roads and bridges therein, (1 JR. S. 504, §16.) By chapter 348 of the Laws of 1876, the over- seers must give twenty-four hours notice to all per- sons assessed to work, of the time and place, when and where such labor is to be performed. Some of the duties of overseers are to be performed without any order from the commissioners, and a neg- lect or refusal to perform them, renders the overseers liable, irrespective of any such order ; while in other cases, they can only be made liable by showing that they have been ordered by the commissioners to per- form the duties which it is alleged they have neglected or refused to perform. Thus, it is their duty, without special directions, to keep the roads in repair, to de- stroy noxious weeds, to collect lines and commutation money, and to remove loose stones from the beaten track of the road. But they must be specially required by the commis- sioners, to warn persons assessed to work, to procure scrapers or ploughs, or to repair bridges over streams, before they can be made liable to the penalty for a neglect or refusal . And, in the latter case, the notice or order from the commissioners must be proved, since it forms the basis of the action, and it must be produced and given in evidence or its non-production accounted for. It cannot be proved by parol, unless all necessary steps have been taken to produce the notice or order itself, and it could not be had. {McFadden v. Kings- bury, 11 Wend. 669.) The delivery of the assessment roll will b« a sufficient requisition to warn the people assessed to work. The overseers are also bound to remove obstructions from the highways in their dis- trict, although not specially directed so to do by the commissioners. {Id.). But they are not bound to at- 168 THE LAW OF HI&HWAYS. tend to the reparation of bridges, without special orders, since that duty has been confided to the commissioners. {Bartlettv. Crozler, 11 John. 439.) How recovered. — The penalty provided above, is to be- prosecuted for by the commissioners, upon the complaint of a resident of the town, and an offer of indemnity for costs ; and .if the commissioners shall neglect or refuse to prosecute therefor, they shall for- feit, in each case, the sum of ten dollars, to be recovered by the person who made the complaint and offered the indemnity. (1 E. 8. 505, §§ 17, 18 ; see ante p. 122. For form of complaint and bond of indemnity, see Ap- pendix Nos. 16 and 17.) Other penalties. — Overseers are liable to a penalty of ten dollars, and also the amount of tax or taxes for labor remaining unpaid, at the rate of one dollar for each day assessed, for omitting to furnish to the super- visor the required list of the labor not performed in their district. (See Chapter VII. ) They are also liable to a penalty of ten dollars, for neglecting or refusing to render an annual account to the commissioners, and to pay over any balance which may be due from him. These penalties are to be prosecuted for and recovered by the commissioners, and applied to making and improving the roads and bridges in the district wherein the delinquent overseer resides. (1 M. 8. 511, §§ 48 and 53, as amended 1865, chap. 522 ) An overseer sued for trespass committed by direction of the com- missioner of highways, notice not having been given to the town or its officers, the town is not liable to him for the expense incurred by him in the litigation. Nor can he on his own motion continue to litigate an action brought against him for an official act, after judgment OVERSEERS, THEIR POWERS AND DUTIES. 169 had passed against him on trial, and demand indemnity from the town for future costs. {People v. Town Esopus, 74 N. T. R. 311.) 4. To Account Annually. Compensation. Every overseer of highways shall, on the second Tuesday next preceding the time of holding the annual town meeting in his town, within the year for which he is elected or appointed, render to one of the com- missioners of highways of the town, . an account in writing, verified by his oath, and containing : 1. The names of all persons assessed to work on the highways, m the district of which he is overseer. 2. The names of all those who have actually worked on the highways, with the number of days they have so worked. 3. The names of all those who have been fined, and the sum in which they have been fined. 4. The names of all those who have commuted, and the manner in which the moneys arising from fines and commutations have been expended by him. 5. A list of all persons whose names he has returned to the supervisor, as having neglected or refused to work out their highway assessments, Avith the number of days and amount of tax so returned for each per- son, and a list of all lands which he has returned to the supervisor for non-payhient of taxes, and the amount of tax on each tract of land so returned. (1 M. 8. 512, § 51, as amended 1865, ch. 522.) The commis- sioners of highways are authorized to administer the oath required to the above account. (Laws 1833, chap. 149.) (For form of account, see Appendix 29.) To pay over moneys. — ^Every such overseer shall 170 THE LAW OF HIGHWAYS. also, then and there, pay to the commissioner all moneys remaining in his hands unexpended, to be ap- plied by the commissioners in making and improving the roads and bridges in the town in such manner as they shall direct. (1 H. S. fll2, § 52.) The commutation money received by the overseers from all moneyed or stock corporations is to be by them paid over to the commissioners at any time on demand; but the commutation moneys received from residents and non-residents are to be applied by the overseer in the improvement and repair of the roads, and cannot be claimed by the commissioners until the overseer's term has expired, and he has accounted. {Fowler v. Westenelt, 40 Barb. 374.) Penalty for neglecting to account. — If any overseer shall refuse or neglect to render such account, or if having rendered the same he shall refuse or neglect to pay any balance which may then be due from him, he shall for every such offense forfeit the sum of ten dol- lars, to be recovered, together with any balance of moneys remaining in his hands, by the commissioners of highways, to be applied to making and improving the roads and bridges in said district ; and it shall be the duty of said commissioners to prosecute for such penalty in every instance in which no return is made, or such delinquency occurs, (1 R. 8. 512, § 53, as amended 1865, chap. 522.) The action for this penalty is to be brought by the commissioners in tlieir own names, vrith the addition of their official title. Compensation. — If any overseer shall be employed more days in executing the several duties enjoined on him by this chapter than he is assessed to woik on the highway, he shall be paid for the exce>s at the rate of OVEKSEEKS, THEIR POWERS AND DITTIES. 171 twelve and half cents per hour for each 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. (1 R. S. 504, as amended 1880, chap. 308.) 172 THE LAW OP HIGHWAYS. CHAPTER VI. ASSESSMENT OE HIGHWAY LABOE. Within sixteen days after their appointment each overseer is to prepare and deliver to the town clerk a list, subscribed by such overseer, of the names of all the inhabitants in his road district who are liable to work on highways. (1 R. 8. 506.) This list is to be delivered by the town clerk 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 towm the then ensuing year. {Id. § 23.) Commissioners to meet. — The commissioners are to meet for the purpose of receiving such list, and to make the assessment, within eighteen days after they shall be chosen, at the place of town meeting. And they shall meet afterwards at such times and places as they shall think proper. (1 R. S. 505, § 20.) If there is but one commissioner, he should attend at the place where the town meeting was held within the same time. It is not essential that the commissioners should perform any business at this meeting ; they may ad- journ to some other time and place. And it is quite probable that, if their first meeting Were after the eighteen days, their proceedings would not be void, since the section must be regarded as directory merely. ASSESSMENT OF HIGHWAY LABOR. 173 WTio liable to assessment. — Every person owning or occupying land in the town in which he or she re- sides, and every male inhabitant above the age of twenty-one years residing in the town, when theassess- naent is made, shall be assessed to work on the public highways in such town ; and the lands of non-resi- dents, situated in such town, shall be assessed for highway' labor as hereinafter directed. (1 R. S. 505, § 19.) Ministers of the gospel and priests of every denomination, paupers and idiots and lunatics, are not included among the number liable to be assessed unless they have lands. A question was raised in Beach v. Furman (9 John. 229), whether a female, though a freeholder, was liable to a highway assessment. To obviate that question the above section was made ex- plicit, by inserting the words he or she by the Legis- lature. (See Revisor' s notes on this section.) Fe- males are now liable to be assessed on their property, and males are liable to a tax both on their property and per capita. The allowance of six days labor to members of the militia made by Laws 1871, chapter 245, was repealed by Laws of 1872, chapter 519. Lands used as a ceme- tery may be exempted from assessment. {Eleventh Ave., 49 How. Pr. 208.) And by Laws of 1869, chap- ter 708, cemetery lands and property of any associa- tion, formed for that purpose, is exempt from taxation and sale on execution. Non-residents. — Lands of non-residents within any town occupied and improved by the owner or owners, or his or their servants or agents, shall be liable to the same assessments for highways as if the owner or owners were residents. (Laws 1832, chap. 107, § 1.) The real property of non-resident owners, improved 174 THE LAW OF HIGHWAYS. or occupied by a servant or agent, shall be subject to assessment of highway labor, and at the same rate as the real property of resident owners. (Laws 1835, chap. 154, § 1.) So all moneyed or stock corporations which shall appear on the last assessment-roll of the town to have been assessed therein, are liable to be assessed for highway labor. (Laws 1837, chap. 431, § 1.) This statute was passed subsequent to the de- cision in the case of the Banlc of Ithaca v. King (12 Wend. 390), which held that moneyed corporations were not liable to be assessed to work on the public highway, and is a legislative overruling of that de- cision. The real estate of railroads, occupied and used by them for railroad purposes cannot properly be assessed as "non-resident lands." {People v. Barker, 48 N. Y. R. 70.) Non-residents, how assessed. — The commissioners 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 manner as is required from assessors, and its value shall be set down opposite to such description ; such value shall be the same as was affixed to such lot in the last assessment roll of the town ; and if such lot was not separately valued in such roll, then in proportion to the valuation which shall have been affixed to the whole tract of which such lot shall be a part. (1 B. 8. 506, § 22, as amended 1835, chap. 154, § 2 ; see form No. 30.) In making such assessment the commissioners can have the use of the assessment roll deposited with the town clerk. They should follow the assessment roll. ASSESSMENT OF HIGHWAY LABOK. 175 except where they are bound to make a proportion, and then they should be very particular in their de- scription of the proportion. The manner in which assessors are required to describe non-resident lands is as follows : The lands of non-residents shall be designated inthe same assessment roll, but in a part thereof separate from the other assessments,, and in the manner pre- scribed in the two following sections. (1 ^. S. 391, §11.) If the land to be assessed be a tract which is sub- divided into lots, or be part of a tract which is so sub- divided, the assessors shall proceed as follows : 1. They shall designate it by its name, if known by one, or if it be not distinguished by name, or the name be unknown, they shall state by what other lands it is bounded. 2. If they can obtain correct information of the sub- division they shall put down in their assessment rolls, and in a first column, all the unoccupied lots in their town or ward owned by non-residents, by their num- bers alone, and without the names of their owners, beginning at the lowest number and proceeding in numerical order to the highest. B. In a second column, and opposite the number of each lot, they shall set down the quantity of land therein liable to taxation. 4. In a third column, and opposite to the quantity, they shall set down the valuation of such quantity. 5. If ^uch quantity be a full lot, it shall be desig- nated by the number alone ; if it be a part of a lot, the part must be designated by boundaries, or in some other way by which it may be known. {Id. § 12.) If the land so to be assessed be a tract which is not subdivided, or if its subdivisions cannot be ascer- 176 THE LAW OF HIGHWAYS. tained by the assessors, they shall proceed as follows : 1. They shall enter in their roll the name or bounda- ries thereof, as above directed, and certify in the roll that such tract is not subdivided, or that they cannot obtain correct information of the subdivision, as the case may be. 2. They shall set down in the proper column, the quantity and valuation as above directed. 3. If the quantity to be assessed be the whole tract, such a description by its name or boundaries will be sufficient ; but if a part only is liable to taxation, that part or part not liable, must be particularly described. 4. If any part of such tract be settled and occupied by a resident of the town or ward, the assessors shall except such part from their assessment of the whole tract, and shall assess it as other occupied lands are assessed ; and if they cannot otherwise designate such parts, they shall notify the supervisor of the town, who shall cause a survey and two manuscript maps to be made, for the purpose of ascertaining the situation and quantity of every such occupied part. 5. One of those maps shall be delivered by the super- visor to the (!0unty treasurer, to be by him transmit- ted to the comptroller, and the other shall be deliv- ered in like manner to the assessors. 6. The assessors shall then complete the assessment of the tract, and shall deposit the map in the town clerk' s office, for the information of future assessors. And the expense of making such survey and map shall be immediately repaid to the supervisor, out of the county treasury, and shall be added by the board of supervisors to the tax on the tract, distinguishing it from the ordinary tax. (/(?. § 13.) When it shall be deemed necessary, by the assessors of any town to have an actual survey made, to ascer- ASSESSMENT OE HIGHWAY LABOE. 177 tain the quantity of any lot or tract of non-resident lands which is divided by the town line, they shall notify the supervisor, who shall cause the necessary surveys to be made at the expense of the tovvm. (Id. §14.) How to proceed iuTnaMng assessments. — In making their estimates and assessments 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 maje 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 appor- tioned upon the estate, real and personal, of every in- habitant of such town, as the same shall appear by the last assessment-roll of the said town, and upon each tract or parcel of land, of which the owners are non- residents, contained in the list made as aforesaid. (See Trustees Angelica v. Morse, 56 Barb. 380.) 4. If, after such apportionment, there should 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 estate, real and personal, of the inhabitants of the town, and upon each tract or parcel of land of which the owners are non-residents, according to the last assessment-roll. 5. The commissioners shall aflix to the name of each person named in the list furnished by the overseers, and also to the description of each tract or parc el of 13 178 THE LAW OF HIGHWAYS. ]and. contained in the list prepared by them of non- resident lands, the number of days which such person or tract shall be assessed for highway labor, as herein directed ; and the commissioners shall subscribe such lists and file them with the town clerk. (1 H. S. 507, § 24, amended in 1835, chap. 154, § 3 ; see forms Nos. 30, 31.) Three times the number of taxable inhabitants is the least number of days to be assessed ; and the com- missioners have power to make it as many more days as they shall deem necessary. There seems to be no limit to their discretion in this particular. Every male above the age of twenty-one years (excepting ministers, priests, paupers, idiots and lunatics), are to be assessed per capita at least one day. Females are, of course, not included in this per capita or poll-tax. Ministers or priests are not to be excepted unless they are engaged in religious teaching as a business ; those who have abandoned or retired from the calling are not to be ex- empted, even though they occasionally teach or exhort. An idiot is one that has had no understanding from his infancy ; a man is not an idiot if he has any glimmer- ing of reason, so that he can tell his parents, his age, or the like common matters. {Black Com. 303.) A lunatic is one who has had understanding, but by dis- ease, grief or other accident has lost the use of his reason ; the fact that he has lucid intervals does not alter the case. {Id.) The number of days assessed on the male inhabi- tants is to be deducted from the whole number of days' work to be assessed in the town, and the balance of such days is to be apportioned upon the estate, real and personal, of the inhabitauts, non-resident land owners, and moneyed and stock corporations. Corporations. — In making the estimate and assess- ASSESSMENT OF HIGHWAY LABOE. 179 ment of the residue of the highway labor to be per- formed in their town, after assessing at least one day' s work npon each of the male inhabitants therein, above the age of twenty-one years, as provided in the six- teenth chapter of the first part of the Revised Stat- utes, entitled "of Highways and Bridges," the com- missioners of highways shall include among the inhab- itants of such town, among whom such residue is to be apportioned, all moneyed or stock corporations which shall appear on the last assessment roll of their town to have been assessed therein. (Laws 1837, chap. 431, § 1 ; see form No. 31.) Under this provision the commissioners are to follow the previous action of the assessors. They are not to assess such corporations as are situated in their town, or such as may properly be considered inhabitants of such town. They are to take the last assessment-roll for a guide, and to include in their assessment every corporation which they find assessed therein ; and they cannot tax by name, as an inhabitant of the town, any corporation which is not so assessed upon the roll. The highway law itself affords no rule or principle for discriminating between such corporations as are and si^ch as are not taxable in the towns, nor between such portions of the property of the corporations as may or may not be thus taxable. The highway law does not even direct the commissioners to include in their assess- ment such corporations, or such corporate property as ought to be, or to have been taxed in the town and upon the last preceding assessment. The rule for the commissioners is to ascertain whether the corpora- tion appears in the assessors' roll, not whether it ought to appear there. The error, if there be one, can only be corrected by correcting the town roll. {People V. Pierce, 31 Barh. 138.) 180 THE LAW OF HIGHWAYS. Associations formed under tlie general banking law are moneyed or stock corporations and liable to taxa- tion. {People V. Supervisors of Niagara, 4 Hill, 20 ; 1 Hill, 504.) Railroad companies are not taxed upon their capital, but upon the valuation of their real estate in the several towns through which the road passes. {MoTiawk and Hudson R. R. Co v. Glute, 4 Paige, 384; People v. Supervisors of Niagara, supra.) The real estate of railroad companies should be assessed at its .value for the purpose to which it has been adapted, and not as farming lands. {People v, Fredericks, 48 Barh. 173.) The structure, rails, etc., of an elevated road is to be taken as real estate. {N. T. Ct. of Appeals, Nov. 9. 1880.) Villages. — By Laws of 1871, chapter 171, in all cases where there is an incorporated village or city within the limits of any town, which is by law a separate road district, and there shall be any real estate, owned by any person or corporation, situated partly within the limits of such village or city, and partly without said village or city, it shall be the duty of the asses- sors of such town, after fixing the valuation of the whole of such real estate as now by law required, to determine what proportion of such valuation is on account on that part of said real estate lying, without the limits of said city or village, and designate the same upon their assessment list. (§1.) The valuation of the real estate lying without the limits of any city or village, so fixed and determined by the assessors, shall be the valuation on which the com- missioners of highways of towns shall assess highway labor against the owner or owners of such real estate ; and in no case shall the commissioners of highways assess any highway labor on property situated within ASSESSMENT OF HIGHWAY LABOR. 181 the limits of any incorporated city or village which is by law a separate road district. (§ 2.) The foundation and superstructure of elevated rail- roads are taxable as real estate. {People v. New York City, 19 Hun, 460.) Private roads. — It shall be the duty of the commis- sioners of highways of each town to credit such per- sons as live on private roads, and work the same, so much on account of their assessments as such commis- sioners may deem necessary to work such private road, or to annex such private roads to some of the highway districts. (1 B. S. 507, § 29.) Separate assessments. — Whenever the commission- ers of highways shall assess the occupant for any land not owned by such occupant, they shall distinguish in their assessment lists the amount charged upon such land, from the personal tax, if any, of the occupant thereof. But, when 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 high- ways on account of the same land. (1 H. S. 508, § 30.) Assessment for labor on plank-roads. — Every per- son liable to do highway labor, living or owning prop- erty on the line of any plank-road of this State, may, on making application, in writing, to the commis- sioner or commissioners of their respective towns, on or before any day previous to the time of making the highway warrants by such commissioners, be assessed the apportionment of highway labor, for such property upon such plank-road ; and the commissioner or com- missioners may, in their discretion, assess such person for the land or property owned by him in or upon the 182 THE LAW OF HIGHWAYS. line of said plank-road as a separate road district. (Laws 1853, chap. 626, § 1, as amended 1872, chap. 128.) It shall be the duty of the highway commissioner or commissioners of such town to make a separate list of snch persons and such land or property so assessed, as commissioners are now by law required to make for every separate road district, which shall be delivered to some one of the directors of such road, who shall proceed to have said highway labor worked on such road, in the same manner that overseers of highways are required by law to do. {Id. § 2.) The said directors shall possess all the powers and have the same authority to compel the performance of such highway labor, or the payment of such highway tax, as the overseers of highways now have by law, and shall make like returns to the commissioners of highways. (Id. § 3.) Any person so assessed may commute for the tax assessed upon him or his property, by paying the sum fixed by law to any of said directors. {Id. § 4.) This does not embrace assessments for the personal property generally of the owner of land on the road, or of the capital of a bank, or of personal property held in trust. {People v. Hall, 15 How. 76.) Where assessors have omitted to assess.— Whenever the assessors of any town shall have omitted to assess any inhabitant or property in such town, the commis- sioners of highways shall assess the person and prop- erty so omitted, and shall apportion highway labor upon such persons or property in the same manner as if they had been duly assessed upon the last assess- ment-roll. (Laws 1837, chap. 431, § 6.) Lists to be filed. — The commissioners shall aflax to ASSESSMENT OF HIGHWAY LABOK. 183 the name of eacli person named in tlie list fumislied by the overseers, and to the description of each tract or parcel of land contained in the list prepared by them of non-resident lands, the number of days which such person or tract shall be assessed for highway labor, as herein directed ; and the commissioners shall subscribe such lists and file them with the town clerk. (1 B. S.-507, § 24, sub. 5, as amended 1835, chap. 154, §3.) Copy of list. — The commissioners of highways shaU direct the clerk of the town to make a copy of each list, and shaU subscribe such copies, after which they shall cause the several copies to be delivered to the respective overseers of highways of the several dis- tricts in which the highway labor is assessed, and the acceptance of such list by any overseer to whom the same may be delivered, shall be deemed conclusive evidence that such overseer is duly chosen or appointed to such oflBce, although the acceptance required by section eighteen, article two, title three, chapter eleven (see ante p. 157), has not been filed as required by said section. (1 H. S. 507, as amended 1863, chap. 444.) . It wiU be a great aid to overseers of the highway if the commissioner will cause the list of names to be annexed to a printed shp, similar to form No. 32. (See Appendix.) This form may be procured from any publisher of law blanks. Names omitted. — The names of persons left out of any such list, and of new inhabitants, shall from time to time be added to the several lists, and they shall be rated by the overseer in proportion to their real and 184 THE LAW OF HIGHWAYS. personal estate, to work on the highways, as others rated, by the commissioners on such list, subjt-ct to aii appeal to the commissioners. (1 B. S. 507, § 26 ; see form No. 33.) Appeals hy non-residents. — Whenever any non- resident owner shall conceive himself aggrieved by the assessments 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. (1 B. 8. 507, § 27, as modified by Laws 1847, chap. 280, § 29.) The appeal must be taken within thirty days after the assessment is actually made, and the list signed by the commissioners. (See form No. 34.) By § 3, sub-division 6, of chap. 245 of the Laws of 1880, the repeal of the different acts therein set forth does not affect the power, authority or jurisdiction of the county court respecting turnpike roads or appeal from determination of commissioners of highways. Proceedings thereon. — It shall be the duty of such judge, within twenty days thereafter, to decide on such appeal, the said owner or agent giving notice to the commissioners of the time of the meeting of the judge ; and his decision shall be final and conclusive in the premises. Each judge shall be entitled to receive for his services on such appeal two dollars for each day he may be employed thereon, to be paid by the party appealing, if the proceedings of the commissioners and 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. (1 R. S. 507, § 28, as modified by Laws 1847,, chap. 280, ASSESSMENT OE HIGHWAY LABOR. 185 § 29.) By chapter 564 of the Laws of 1857, county judges are no longer allowed to receive fees except for services which may be performed by justices of the peace and Commissioners of deeds. Tenant to deduct assessment. — Whenever any ten- ant of any land for a less term than twenty -five years shall be assessed to work, on the highways, for sucli 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 one dollar per day, unless otherwise pro- vided for by covenant or agreement between such tenant and his landlord. (1 R. S. 508, § 31, as amended 1864, chap. 395.) Grading, &c., road. — It shall be lawful for the in- habitants residing in any road district in this State, to grade, gravel or plank the road or roads in such district, by anticipating the highway labor of such road district for one or more years, and applying it to the immediate construction of such plank or gravel road ; and after the completion of such plank or gravel road the said inhabitants shall be exempted from the labor so antici- pated and applied, except so far as their labor may be necessary to keep their said road or roads in repair ; such road to be in all cases a free road. (Laws 1849, chap. 250, § 12.) Errors how corrected. — Where the highway com- missioners shall err in their assessment, such error is to be corrected by certiorari. {Thomp. Pro. Rem. 310.) 186 THE LAW OF HIGHWAYS. Additional assessment by otierseer. — When the quantity of labor assessed on the inhabitants of any road district by the commissioners, shall be deemed insufficient by the overseer of such district, to keep the roads therein in repair, it shall be the further duty of such overseer to make another assessment on the actual residents in such district in the same propor- tion, as near as may be, and not exceeding one-third of the number of days assessed in the same year by the commissioners, on the inhabitants of such district ; and the labor so assessed by an overseer shall be per- formed or commuted for, in like manner as if the same had been assessed by the commissioners of highways. (1 R. S. 503, § 8 ; see form 98.) To remove snow. — Whenever the labor in any ward or district has been worked out, commuted for or returned to the supervisor, and the highways are obstructed by snow, or otherwise, and written notice has been given to the overseer by any two or more inhabitants of the town, liable to payment of highway tax, requesting the removal of such obstruction, it shall be the duty of the overseer of highways in such district, and they are hereby required, to immediately call upon all persons liable to highway tax in their respective districts, to assist in removing such obstruc- tions ; and such labor, so called for by the overseer, shall be assessed upon those liable ta perform the same, in proportion to their original assessments, and all persons so called out and failing to appear at the place designated by the overseer, or to commute at a dollar a day, within twenty-four hours after due notice, shall be liable to fine at the rate of one dollar and fifty cents a day, for each days' labor they may be required to perform, which fine shall be collectible ASSESSMENT OE HIGHWAY LABOE. 187 by the overseer as sucli, by suit in Justice's court, and stall be applied by said overseer to the purposes spec- ified in this section. And if the said overseer of high- vrays, after recei\'ing the written notice, as aforesaid, neglects, without good and sufficient reasons, to have such highways opened, without delay, he shall be lia- ble to a penalty of five dollars per day for every day he neglects such duty, the penalty to be collected in justice' s court, with costs, by any one suing for the same, and the said penalty shall be paid over to the commissioners of highways for the use of the town. (Law 1869, chap. 593 ) 188 THE LAW OF HIGHWAYS. CHAPTERVII. PEKFOBMANCE OF HIGHWAY LABOR. 1. Notice to work on highways. 2. Commuting for labor. 3. Teams, etc., substitutes, hours to work, i. Abatement of tax. 5. Penalties for not working, how col- lected. 6. Proceedings to collect non-resident labor unpaid. 7. Penalties against corporations and how collected. 8. Annual return of overseers. 9. Eights and liabilities in performance of labor. 10. Changing system of working high- ways. 1. Notice to Wokk on Highways. The assessment lists for labor on highways having been prepared by the commissioners, copied by the town clerk, and subscribed by the commissioners, are to be delivered to the respective overseers of highways of the several districts in which the highway labor is assessed, and the overseers are thereupon to proceed to cause the labor assessed to be performed in their several districts. The delivery of the assessment roll to the overseer will be a sufficient order to warn per- sons assessed to work on the highways. The manner in which they are to proceed is as follows : It shall be the duty of overseers of highways to give at least twenty-four hours' notice to all persons assessed to work on the highways and residing within the limits of their respective districts, of the time and place where they are to appear for that purpose, and with what implements, and also that they will be allowed for work at the rate of eight hours per day for PEKFOEMANCE OF HIGHWAY LABOE. 189 all the hours for which they may work on the high- ways between the hours of seven o' clock in the fore- noon, and six o'clock in the afternoon. The high- way tax upon any land or property shall be worked out or commuted for in the district in which said land or property is situated, and if commuted for, the money shall be paid to the overseer of said district for the benefit of the roads and bridges in said district ; but this act shall not apply to, or affect any county, city, village, town or district where the disposition of the highway tax has been provided for by special enactment. (1 Ji. S. 508, as amended by Laws of 1876, chap. 348.) This notice need not be in writing, Where a person elects to work in a district where he has lands, but does not reside, he should, to avoid any controversy, obtain the written consent of the commissioners. After working the required number of days, he should bring a receipt or certificate to that effect from the overseer of the district where the labor is performed to the one where he resides, who will give him credit accordingly. (For consent of commissioners, see form No. 35.) Notice to agent. — It shall be the duty of the several overseers of highways to notify the agent of every non-resident landholder, whose lands are assessed (if such agent resides in the town where such assessment is made), of the number of days such non-resident is assessed, and of the time when, and the place where the labor is to be performed ; which notice shall be given at least five days previous to the time appointed. (1 R. S. 509, § 33.) If the overseer cannot ascertain that such non-resi- dent has an agent within such town, he shall affix a 190 THE LAW OF HIGHWAYS. written notice on the outer door of the building in which the last town meeting in such town was held, containing a list of the names of such non-residents, when known, and a description of the tracts of land comprised in his list, together with the number of 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. {Id. § 34.) Where the agent can be found it is not necessary that the notice be in writing although it would be proper to have it in writing. (See form No. 36.) Notice to corporations. — Moneyed or stock corpora- tions shall be notified to furnish the amount of high- way 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, treas- urer or secretary of such corporation, or any clerk or other officer thereof, at the principal office or place of transacting the business or concerns of the said com- pany ; 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. (Laws 1837, chap. 431, § 2.) 2, Commuting foe Labor. Every person liable to work on the highways shall work the whole number of days for which he shall have been assessed, but every such person other th'Bn an overseer may elect to commute for the same, or for PERFORMANCE OP HIGHWAY LABOR. 191 some part therefor, at the rate of twelve and a half cents per hour for each day, in which case such com- mutation money shall 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 improvement of the roads and bridges in the same district. (1 H. S. 509, § 35, as amended by Laws 1880, chap. 308.) Every person intending to commute for his assess- ment, or for any part thereof, shall, within twenty -four hours after he shall be notified to appear and work on the highways, pay the commutation money for the work required of him by such notice ; and the commu- tation shall not be considered as complete until such money be paid. {Id. § 36.) Corporations may commute. — Every moneyed or stock 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 pur- pose the said commissioners shall be entitled to demand and receive from the overseers, to whom any such commutation may have been paid, the whole or any portion thereof ; but in every ease where any such cor- poration shall be located in any city, village or town, where by law the road tax is now payable in money,, the road tax imposed on any such corporation shall be paid in money, according to the provisions of the sev- eral laws affecting said city,, village or town. (Laws 1837, chap. 431, § 3.) Whenever any railroad eorporatiom! assessed in any 192 .THE LAW OF HIGHWAYS. town or road district for highway labor shall elect to commute thereior, as provided by law, such corpora- tion shall pay the commutation money to the commis- sioner or commissioners of highways of such town, and such moneys shall be applied and expended in the improvement of thf roads and building and maintain- ance of bridges in such town. (Laws of 1878, chap. 44, amending Laws 1877, chap. 344.) The highway commutation tax may be expended on sidewalks in unincorporated villages. (Laws 1880, chap. 305.) 3. Abatement op Tax. For shade trees. — Any inhabitant, liable to highway tax, who shall transplant by the pide . of the public highway any forest shade trees, or fruit trees, of suit- able size shall be allowed by the overseers of hisrhways, in abatement of his highway tax, one dollar for every four trees set out ; but no row of elms shall be placed nearer than seventy feet ; no row of maples, or other forest trees nearer than fifty feet, <^xcept locust, which may be set thirty feet apart ; fruit trees must also be set at least fifty feet apart ; and no allowance, as before mentioned, shall be made, unless such trees shall have been set out the year previous to the demand for said abatement of tax, and are living and well protected from animals at the time of such demand. (Laws 1870, chap. f)95, amending Laws 1869, chap. 322.) Any trees transplanted by the side of the public highways, as aforesaid, in the place of trees which have died, shall be allowed for in the same manner and in the same conditions as in the preceding section. (Laws 1869, chap. 322, § 2.) No person shall be allowed an abatement of his high- PEEFORMAKCE OF HIGHWAY LABOE. 193 way taxes, as aforesaid, more than one-quarter of Ms annual highway tax, and no one shall receive abate- ment of tax for trees transplanted previous to the passage of this act. {Id. § 3.) For removing fence. — Any inhabitant liable to high- way tax who shall remove from lands owned or occu- pied by him the fence along any public highway for the purpose of preventing the drifting of snow into such highway, shall be allowed by the overseer of highways, in abatement of his highway tax, the time actually expended in removing such fence and in re- placing the same; provided, however, that no allow- ance shall be made as hereinbefore provided unless such fence shall have been removed pursuant to the direction of the overseer of highways. {Laws 1875, cTi. 196.) For watering-trougJi. — The commissioners of high- ways in the several towns of this State shall annually abate three dollars" from the highway tax of any inhabitant of a road district, who shall construct on his own land, and keep in repair, a watering trough beside the public highway, well supplied with fresh water, the surface, of which shall be two or more feet above the level of the ground, and easily accessible for horses and vehicles ; but the said commissioners of highways, respectively, may designate the number nec- essary for the public convenience in each district, and no others than those designated shall be allowed this abatement of tax. (Laws 1872, chap 274, § 1.) 4. Teams, etc., SuBSTitUTES, Hoijes to Work. Every overseer of highways shall have power to re- quire a team, or cart, wagon or plough, with a pair of ]4 ' 194 THE LAW OF HIGHWAYS. horses or oxen, and a man -to manage them, from any person having the same within his district, who shall have been assessed three days or more, and who shall not have 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' ser- vice therewith. (1 R. S. 509, § 37.) Substitutes, hours to worlc. — Every person assessed to work on the highways and warned to work may appear in person, or by an able-bodied man as a sub- stitute, and the person or substitute so appearing shall actually work eight hours in each day, unless such person be assessed one dollar and twenty -five cents or more, when such person or his substitute shall be allowed to actually work ten hours in each day, under the penalty of twelve and a half cents for every hour such person or substitute shall be in default, to be im- posed as a fine on the person assessed. (1 It. S. 610, § 38, as amended by Laws 1880, chap. 308, § 3.) 5. Penalties fob not Working, and how Col- lected. If any such person or his substitute shall, after ap- pearing, remain idle or not work faithfully, or hinder others from working, such offender shall, for every offense, forfeit at the rate of twelve and a half cents an hour for each day. (1 B. S. 510, § 39, as amended by Laws 1880, phap. 308, § 4.) Penalties for not working, efc.— Every person so assessed and duly notified who shall not commute, and who shall refuse or neglect to appear as above pro- vided, shall forfeit, for every day' s refusal or neglect, PERFOKMANCE OE HIGHWAY LABOR. 195 at the rate of twelve and a half cents an hour for each day. If he was required to furnish a team, carriage, man or implements, and shaU refuse or neglect to com- ply, he shall be fined as follows : 1. For wholly omitting to comply with such requisi- tion, three dollars for each day of eight hours, and three dollars and seventy-five cents for each day of ten hours. 2. , For omitting to furnish a cart, wagon or plough, one dollar for each day of eight hours, and one dollar and twenty-five cents for each day of ten hours. 3. For omitting to furnish a pair of horses or oxen, one dollar for each day of eight hours, and one dollar and twenty-five cents for each day of ten hours. 4. For omitting to furnish a man to manage the team, one dollar for each day of eight hours, and one dollar and twenty-five cents for each day of ten hours. (1 Ji. 8. 510, § 40, as amended by Laws 1880, chap. 308, § 6.) Complaint, how made. — It shall be the duty of every overseer of highways, within six days after any per- son so assessed and notified shall be guilty of any re- fusal or neglect for which a penalty or fine is pre- scribed in this title, unless a satisfactory excuse shall be rendered to him for such refusal or neglect, to make complaint on oath to one of the justices of peace of the town. (Id. § 41 ; see form No. 37.) No one but an overseer can make complaint against one neglecting to work. The justice has no jurisdic- tion of a complaint by any other person. ( Walker v. Moseleyj 5 Denio, 102.) If the overseer should decide that an excuse offered was not satisfactory, and should enter a complaint even unreasonably, he will not be liable to the party complained of, unless he acts ma- 196 THE LAW OF HIGHWAYS. liciously. {Potter v. Benniss, 1 John. 515 ; Freeman V. Cornwall^ 10 Jolin. 470.) The complaint must be made to one of the justices of the town, and before a justice of the peace as justice, and not before a jus- tic^ s cowt. {Rice Y. Milks,! Barb. 337.) A justice is not disqualified to entertain these proceedings by reason of his being an inn-keeper. {Id.) Proceedings thereon. — The justice to whom such complaint shall be made shall forthwith issue a sum- mons, directed to any constable of the town, requiring him to summon such delinquent to appear forthwith before such jiistice, at some place to be specified in the summons, to show cause why he should not be fined according to law for such refusal or neglect ; which summons shall be served personally, or by leaving a copy at his personal abode. (1 P. 8. 510, § 42.) This summons should be served personally, by leaving a copy with the person served, or at his residence, and the service must be made by a constable of the same town. {Bouton v. Neilson, 3 Johns. 474 ; Beach v. Furman, 9 Johns. 229 ; see form No. 38.) If, upon return of such summons, no sufficient cause shall be shown to the contrary, the justice shall impose such fine as is provided in this title for the ofl'ence complained of, and shall forthwith issue a warrant under his hand and seal, directed to any constable of the town where such delinquent shall reside, command- ing him to levy such fine, with the costs of the pro- ceedings, of the goods and chattels of such delinquent. {Id. § 43.) On return of the summons the justice should allow a reasonable time for the party to appear and defend ; and when it is returned, served by copy, he should see that all has been fair in the attempt to serve it. No adjournment can be granted, but the PEEFORMANCE OF HIGHWAY LABORt 197 justice can exercise a reasonable discretion in holding open the court for the appearance of the delinquent, or to allow him to procure witnesses. The justice has a large discretion in passing upon the sufficiency of the excuse. He is the sole judge, and his decision is final ; no appeal or certiorari will lie from his decision. (See forms Nos. 38-40.) The constable to whom such warrant shall be directed shall forthwith collect the moneys therein mentioned. He shall pay the fine when collected to the justice who issued the warrant, who is hereby required to pay the same to the overseer who entered the complaint, to be by him expended in improving the roads and bridges in the district of which he is overseer. (1 R. S. 511, § 44.) It is questionable whether any property is exempt from levy under this warrant. The exemption is " un- der any execution" in the justice's act, and the same words are used in reference to executions issued out of a court of record. (3^. ^S'. 367, § 23.) There has been no judicial exposition of the subject. It would seem, however, that the exemption does not apply. Penalties to be set off. — Every penalty collected for a refusal or neglect to appear and work on the high- ways shall be set off against the assessment upon which it was founded, estimating all moneys collected as a satisfaction at the rate of twelve and a half cents an hoiir for each day. (1 H. S. 511, § 45, as amended Laws 1880, chap. 308, § 6.) Excuses. — The acceptance by an overseer of any ex- cuse for refusal or neglect, shall not in any case exempt the person excused from commuting for, or working the whole number of days for which he shall have been assessed during the year. (1 R. 8. 511, § 46.) 198 the law of highwats. 6. Proceedings to Collect Non-Residekt Labor Unpaid. Every overseer of highways shall, on or before the first day of October in each year, make out and deliver to the supervisor of his town a list of all resident land- holders residing in his district, who have not worked out their highway assessment or commuted for the same, with the number of days not worked or commu- ted for by each resident of his district, charging for each day in such list at the rate of one dollar and fifty cents per day ; and also a list of all the lands of non-residents, and of persons unknown, which were assessed on his warrant by the commissioner of highways or added by him according to law, on which the labor assessed has not been performed or commuted for, and the number of days' labor unpaid by each, charging for the same at the rate of one dollar and fifty cents per day ; which list shall be accompanied by the affidavit of the over- seer, duly certified, that he has given the notice required by the thirty- second, thirty-third and thirty- fourth sections of this title, and that the labor for which such residents and such land is returned has not been performed or commuted. (1 R. S. 511, § 47, as amend- ed Laws 1870, chap. 461.) If any overseer shall refuse or neglect to deliver sueh lists to the supervisor, as provided in the last preceding section, or shall refuse or neglect to make the affidavit as therein directed, he shall, for every such offense, forfeit the sum of ten dollars, and also the amount of tax or taxes for labor remaining unpaid, at the rate of one dollar for each day assessed, to be recovered by the commissioners of highways and applied to making and improving the roads and bridges in said district. (1 H. S. 511, § 48, as amended by Laws 1865, chap. PEKFOEMANCE OP HIGHWAY LABOK. 199 522.) It shall be the duty of the supervisors of the several towns to receive the lists of the overseers of highways, when delivered pursuant to the prect^ding forty-seventh section, and to lay the same before the board of supervisors of the county. (1 Ji. S. 511, § 49.) It shall be the duty of each board of supervisors, at their annual meeting in each year, to cause the amount of such arrearages for highway labor re- turned to them severally as provided in the preceding section, estimating each days labor at one dollar and fifty cents a day, to be levied and collected from the real or personal estate of the person, corporation or non-resident real estate from which said arrearages of highway labor may remain unpaid, and. to be collected by the collector of the several towns in the same man- ner that other taxes are collected, and order the same when collected by said collector to be paid over to the commissioners of highways of the town wherein the same is collected, to be by them applied toward the construction, repair, and improvement of the roads and bridges in the district in which the labor was origi- nally assessed. (1 H. 8. 511, § 50, as amended by Laws 1877, chap. 197.) 7. Penalties against Coeporattons, and How Collected. Every moneyed or stock corporation shall be liable to the same penalties for every day' s work required, and for every default of any substitute sent by them, as is provided by law in the case of individuals required to work on highways, which shall be collected in the same manner, and paid over to the commissioners of highways of the town, by the constable collecting the same, and may be expended by them in the same man- 200 THE LAW OF HIGHWAYS. ner as herein provided for the commutation money received from any such corporation. The summons issued by any justice, according to this act, may be for any number of penalties incurred by any such corpo- ration previous thereto, and may be served in the man- ner provided by law for tbe service of writs or sum- mons issuing out of courts of record against corpora- tions. (Laws 1837, chap. 431, § 4; see forms Nos. 37, 40.) In case any such penalty cannot be collected, as herein provided, the commissioners of highways of that town may file a bill in the Court of Chancery against any such delinquent corporation for the delivery and sequestration of its property ; whereupon the same proceedings shall be had as are provided by law for the collection of county taxes assessed against incorporated companies ; and the Chancellor shall pos- sess the like powers in respect to the same ; and the said commissioners may also recover such penalties or any number of them that may have been incurred, with costs, from such . delinquent company in any court of record in this State. i{Id. § 5.) 8. Aknital E.ETUE2sr or Ovekseek. Every overseer of highways .shall, on the second Tuesday, next preceding the time of holding the an- nual town meeting in his town, within the year for which he is elected or appointed, render to one of the commissioners of highways of the town an account in writing verified by his oath, and containing : 1. The names of all persons assessed to work on the highways in the district of which he is overseer. 2. The names of all those who have actually worked PEKFORMANCE OF HICHIWAY' LABOK. 201 on the highways, with the number of days they have so worked. 3. . The names of all those who have been fined, and the sums in which they have been fined. 4. The names of all those who have commuted, and the manner in which the moneys arising from fines and commutations have been expended by him. 5. A list of all persons whose names he has returned to the supervisor as having neglected or refused to work out their highway assessments, with the number of days and amount of tax so returned for "each per- son, and a list of all lands which he has returned to the supervisor for non-payment of taxes, and the amount of tax oa each tract of land so returned. (1 a. S. 510, § 51 ; see form 29.) The oath to the above account may be administered before, any commissioner of highways. (Laws 1833, chap. 149.) To pay over moneps. — Every such overseer shall also the^n and there pay to the commissioner all moneys re- maining in his hands unexpended, to be applied by the commissioners in making and improving roads and bridges in the town in such manner as they shall di- rect. (1 B. S. 512, § 52;) Penalty, how collected. — If any overseer shall refuse or neglect to render such account, or, if having ren- dered the t^ame, 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 ten dollars, to be recovered, togeth^J• with any balance of moneys re- maining in his hands, by the commissioners of high- ways, to be applied to making and improving the roads and bridges in said district ; and it shall be the 202 THE LAW OF HIGHWAYS. duty of said commissioners to prosecute for such pen- alty in every instance in which no return is made, or such delinquency occurs. (1 R. 8. 512, § 53.) Re-assessment in case of neglect. — Whenever it shall appear from the annual return of any overseer of high- ways, made in pursuance of the fifty-first section of the sixteenth chapter of title first of the first part of the Revised Statutes, that any person who was assessed to work on the highways (other than non-residents) has neglected to work the whole number of days to him assessed, and has not commuted for, or otherwise satisfied such deficiency, then it shall be the duty of the commissioners of highways to re-assess such defi- ciency to the person so delinquent, at thi^ next assess- ment of work for highway purposes, and to add to it his annual assessment. (Laws 1832, chap. 107, § 2.) Such re-assessment shall not exonerate any Overseer of highways from any penalty which he may have in- curred under the sixteenth section of the last aforesaid chapter. {Id. § 3.) 9. Rights and Liabilities in Pekformanoe of Laboe. It is proper in this connection to ascertain the rights and liabilities of the highway officers in repairing and performing labor on highways. What rights have such oflScers in improving the road over the soil, and to the materials within the limits of the road ? The general rule is that they may dig the soil and use the timber and other materials found within the space of the road in a reasonable manner for the purpose of making and repairing the road and its bridges. There is, however, this exception, that all the trees PEEFOEMANCE OF HIGHWAY LABOE. 203 standing or lying on any land over which a highway shall be laid out, shall be for the proper use of the owner or occupant of such land, except such of them as may be requisite to make or repair the highways or bridges on the same land. (1 H. S. 525, § 126.) This limitation restricts the use of trees by the public officers to the reparation of the roads and bridges on the same lands whereon such trees stand. The materials taken from a street, in making a city improvement, belong to the owner of the fee, not to the city, nor to the contractor. {Fisher v. City of Roches- ter^ 6 Lans. 225.) As to action for cutting or injuring trees, see Laws of 1880, chap. 178, §§ 1667 and 1668. In the case of Fish v. Mayor of Rochester (6 Paige, 272 , Chancellor Walwoeth said : "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 under their direction, in improving the road at that point, and deposit them wherever they may be wanted for the repair or improve- ment of the highway in other places ; even beyond the boundaries of the lands opposite to where the materials were taken. The only restriction upon this power, of which I am aware, is that contained in the 126th section of the title of the Kevised Statutes, relative to high- ways and bridges, which gives to the owner or occujjant of lands over wljich a highway is laid out the use of the trees thereon, except such as are requisite to make or repair the highways or bridges on the same land. This legislative restriction of the right to use trees, or limiting it to repairs of the road within the same lands, appears to be founded upon the supposition that with- out such restriction they might be used to repair or improve other parts of the highway ; and as the restric- 204 THE LAW OF HIGHWATS. tion is confined to trees, other materials may be used beyond the bounds of the land from which they are taken. Trees, when cut down, may be left, without much inconvenience, by the side of the highway until the owner of the land through which the road runs has a reasonable time to remove them. But when it is necessary to excavate earth or gravel, it must be re- moved entirely, or the work cannot be completed, and must be done anew. And it cannot be deposited upon lands adjacent to the highway without the consent of the owners of such land." The overseers have not the right to cut down the trees growing on the side of the road, and left there for shade or ornament. {Ante p. 27.) The owner of lands adjoining a highway not less than three rods wide, may plant or set out trees on the side of such highway contiguous to his lands, which trees shall be set in reg- ular rows at a distance of at least six feet from each other ; and whoever shall cut down, destroy or injure any tree that has been, or shall be, so planted or set out, shall be liable in damages to the owner of such adjoining lands. (1 R. S. 525, § 127.) The powers of the highway officers are co-extensive with the territory included in the public way, and they may work and improve every part and parcel of it at pleasure, being only responsible for a wanton or malicious injury to the rights of adjacent owners. It may very well be that in some places, and especially in thickly settled villages, the whole width of the street requires regulation and improvement, not only for the public convenience, but to avoid danger to teams of travellers on account of some irregular forma- tion or roughness of surface. Indeed the whole breadth may be required, in the judgment of the commissioner, for the convenience of the public travel. {Graves PEBFOEMANCE OF HIGHWAY LABOE. 205 V. Otis, 2 Hill, 470.) Therefore the highway officers were held to have power to cut down an eminence in a public street and sidewalk, whereby the plaintiff's store was left some six or eight feet above the level of the sidewalk adjacent to the premises. {Id.) Commissioners and overseers of highways acting in the proper discharge of their duties, and without mal- ice, may grade, level and improve streets and high- ways, and, if they exercise proper skill, are not answerable for consequential damages which may be sustained by those who own lands bounded by the street or highway. And this is so whether the dam- age results either from cutting down or raising the street ; and although the grade of the street has been before established, and the adjoining land owners have erected buildings with reference to such grade. {Bad- cliff" s Executors v. Mayor of BrooMyn, 4 If. Y. H. 203, and cases.) They may, for the purpose of grad- ing a highway, cut down a hill or raise an embank- ment in the road adjacent to the premises and dwell- ings of citizens, and if those citizens suffer expense and inconvenience thereby, no action can be maintained for the injury. {Benedict v. Ooit, 3 Barb. 469 ; Oraties v. Otis, supra ; Anderson v. Van Tassel, 53 N. T. B. 631.) But if the power be exercised in an unreasona- ble manner, or wantonly and maliciously, the rule is othervdse. {Id.) If an action against an overseer of highways, for causing breaks to be made across the road, on a hill, whereby the plaintiff was thrown from his wagon and injured, he is not allowed to show that others were injured at the same place. {Sherman y. Kortright, 52 BarJ).2<61.) An overseer has no right, in making repairs upon a highwa,y to change a natural watercourse. {Mar an v. 206 THE LAW OP HIGHWAYS. McClearns, 63 Barb. 185.) Nor can he relieve his own premises at the expense of the public. {Kellogg V. Thompson, 66 iV^. T. B. 88.) But commissioners in grading highways are not bound to provide a channel for the drainage of surface- water, and are not liable for injuries resulting from their omitting so to do. {Gould v. Booth, 66 N. T. Ji. 62.) In the case of Radcliff^s Executors v. Mayor of Brooklyn, supra, it appeared that the plaintiff ' s tes- tator was seized of a lot of land in Brooklyn, with a dwelling-house, out-houses and garden thereon, adja- cent to the East river, but a considerable distance above it, which were sustained by a natural bank hav- ing a gradual descent to the river ; that the defendants, acting in the capacity of commissioners of highways, in grading and leveling the street, dug away such nat- ural bank, whereby the premises were undermined, and a part of the inclosed grounds, together with the shrubbery, fixtures, fences, etc., fell and were wholly lost, etc., it was held that no action could be sustained. So in Fish v. The Mayor of Rochester (6 Paige 268), where the defendants, as commissioners of highways, were proceeding to level and grade the street in front of plaintiff's dwelling-house and store, and to dig down and remove the earth therefrom, by which pro- ceeding the plaintiff alleged his premises would be irrepairably injured, it was held that no action would lie, and an injunction was refused. It has been decided in Maine that a surveyor — whose office is similar to that of overseer in this State — has no authority to appropriate land not lying within the limits of the road. That he has no authority to make a ditch through adjoining improved lands, for the pur- pose of having water turned off from the highway PEEFOEMANCE OF HIGHWAY LABOR. 207 however important to the public it may be to have it done ; and that for such an act the owner of the land may maintain trespass. {Plummer v. Sturtevant 32 Maine, 325.) Where the corporation of the city of New York, in whom are vested the powers and duties of commissioners of highways, in grading the public streets raised the same several inches without making any drain or sewer, thereby obstructing the . former flow of water from the plaintifll's premises, so that the watf^r ran from the street, and from the adjacent lots, upon such premises, and stood there for several months, the court held that no action could be maintained. Beaedsley, J., who delivered the opin- ion of the court, said : " The corpoiation of New York had an undoubted power to raise, pitch, grade and make the street and avenue, as was done in this in- stance ; and it was conceded on the trial of the cause that the proceedings for these purposes had been regu- lar. What was done it was therefore lawful to do ; and if the plaintiff was thereby incommoded, it was daTnnum absque injuria, and gave her no right of ac- tion against those who had only exercised a legal power vested in them for the public convenience and welfare. It would, indeed, be remarkable if such an act would, in any case, subject a party to an action ; and I think the law is not chargable with so gross an absurdity. The plaintiff does not allege that any part of her land was taken for the street or avenue ; but one portion of her complaint is that she was injured by making the street and avenue on land which bounded two sides of her lot. She certainly may thus have sustained some damage, for more or less inconvenience results to indi- viduals in every case of this description. It is so in the opening of new highways, and in the construction of canals and other public works ; but if those on 208 THE LAW OF HIGHWAY. whom powers for such purposes are conferred do not exceed their jurisdiction, they are not responsible for collateral consequences to individuals. As was said by Lord Kenyon in a case which, in principle, is like the point now under consideration : ' If this action could be maintained, every turnpike act, paving act and navigation act would give rise to an infinity of actions. If the legislature think it necessary, as they do in many cases, they enable the commissioners to award satisfaction to the individuals who happen to suffer. But if there be no such power the parties are without remedy, provided the commissioners do not exceed their jurisdiction. But it does not seem to me that these commissioners, acting under this act, have been guilty of any excess of jurisdiction. Some indi- viduals suffer an inconvenience under all these acts of Parliament ; but the interest of individuals must give way to the accommodation of the public' {Governor, &c., of Cast Plate Manufacturers v. Meredith, 4 Burn. & East. 796.) In the same case Buller, J., observed : ' There are many cases in which individuals sustain an injury for which the law givt-s no action ; for instance, pulling down houses, or raising bulwarks, for the preseivation and defence of the kingdom against the king's enemies. The civil law writers indeed say that the individuals who suffer have a right to resort to the public for satisfaction ; but no one ever thought that the common law gave an aiction against the indi- viduals who pulled down the houses, &c. This is one of those cases to which the maxim applies, salus popuU suprema est lex. If the thing complained of were lawful at the time, no action can be sustained against the party doing the act. In this case express power was given to . the commissioners to raise the pavement ; and not having exceeded their power, they PERFORMANCE OE HIGHWAY LABOR. 209 are not liable to an action for having done it.' (See also Sutton v. OlarTce, 6 Taunt. 29 ; Hall v. Smith, 2 Bing. 155 ) So, this corporation having power to make the street and avenue along the plaintiff' s land, and not having transcended its authority in what was done, is not liable to an action at the suit of the plain- tiff for any damage she may have sustained. ' ' ( Wilson V. Mayor of New York, 1 Denio, 597.) But it is clear, from the authorities cited above, that if the highway officers are actuated by malice or ill- will in making alterations in the highway by which another is injured, they are liable. So municipal cor- porations are liable for any carelessness or unskillful- ness in repairing or altering a highway whereby injuries are sustained. Thus, where trustees of an incorporated village undertook to construct a platform to connect a side- walk with abridge, and while the work was in progress, carelessly left an uncovered space therein during the night, without placing any guard or signal to warn passengers of such opening, the corporation was held liable to one who had fallen through such opening and sustained injuries thereby. {West v. Trustees of BrocTcport, 16 N. T. JR. 161.) So where a corporation caused a culvert to be con- structed to carry off the water of a natural stream, and a freshet having occurred^ the culvert, in consequence of its want of capacity and the unskillfulness of its construction, failed to discharge the waters, so that they were set back upon the factory of the plaintiffs and injured their property situated therein ; it was held that the corporation was liable for the damage. {Rochester White Lead Qo. v. Rochester, 3 JST. Y. R. 463.) See further as to the liability of commissioners, 15 210 THE LAW OF HIGHWAYS. towns and incorporated cities and villages, antepag& 85, et seq. Where the road crosses a natural stream, a bridge- or culvert is to be constructed so as not to obstruct the current. So, if a highway is laid out along a water- course, comprehending it in whole or in part within, the limits of the highway, and it becomes necessary to work the road to its entire width, it must be done by constructing a roadway over the channel, so as not to. obstruct the flow of the water. {People v. Kingman^ 24 N. T. B. 559 ; Thompson v. Allen, 7 Lans. 459.) 10. Change of System of Woeking Highways. For such towns in this State as may wish to change- the mode of working the highways from the system as. set forth in 1 R. S. 506, it is provided that, upon the- written request of twenty-five taxpayers of any town, it shall be the duty of any justices of the peace or other officers who preside at the town election of any such town, to submit to the electors at each annual town election, and the electors of any town may vote: at the next regular annual town meeting upon the- question of changing the manner of working the high- ways. Such vote shall be by ballots, upon which shall be written or printed respectively ' ' for changing the- mode of working the highway," and "against chang- ing the mode of working the highways." The ballot* shall be deposited in a separate box by themselves, be counted by the inspectors of election or other officers, presiding at such town election, and if a majority of the electors shall vote in favor of the proposed changej. the town voting therefor may avail itself of the privi- leges of this act, upon causing a minute of its action to be entered by the town clerk in the town, records.. PEKFOKMANCE OF HIGHWAY LABOE. 211 (Laws 1873, chap. 395, as amended by Laws 1875, chap. 341, § 2.) Annual tax. — It shall be lawful for any town voting in favor of such change, to raise by tax, to be levied and collected the same as any other tax, for the repair of its highways, an annual sum of money which shall be at least equivalent to the value of the days' work theretofore assessed at the commutation prices. (Laws 1873, chap. 395, § 8, as amended by Laws 1874, chap. 169.) • . Amount. — The amount of such tax shall be deter- mined by the pommissioners of highways, or a major- ity of them, and shall be delivered to the board of town audit, who shall certify the same to the board of supervisors the same as any other town charges. (Laws 1873, chap. 396, § 4.) Board of Commissioners. — The commissioners of highways shall constitute a board to be known as " the board of highway commissioners of the town of ." They shall elect one of their number president, and in the event of their failure so to do, the commis- sioner longest in office shall be entitled to that posi- tion. The president of said board is hereby author- ized to receive, and the collector of taxes is directed to pay, the moneys collected for highway purposes. Before receiving such moneys the said president shaU execute to the supervisor of the town a bond with sureties in penalty of double the sum which may come into his hands, conditioned for the faithful accounting of such moneys ; the said bqnd to be approved, both as to its form and sufficiency, by the supervisor of the town. {Id. § 5.) 212 THE LAW OF HIGHWAYS. Powers of Board. — The said " board of highway commissioners" shall have fuU power to do any and all acts necessary to the prompt and effectual repairs to the highway. They may divide or consolidate the road districts in their town ; may give out the work to the lowest bidder, or contract, or appoint an overseer to do the same. They may contract for the work on some districts, and have that on others done by days' labor, as they think best. Their pay and general duties shall remain the same as now provided by law. If any town has but one highway commissioner, the powers and duties hereby conferred on the board of highway commissioners is hereby conferred on such highway commissioner. {Id. § 6.) To render accounts. — At the annual meeting of the board of town audit the said commissioners of liigh- ways shall render a detailed account of the moneys received and the manner in which they have been expended, which account must be verified by oath. {Id. % 7.) To lay out roads. — It shall continue as heretofore the duty of said commissioners of highways to lay out the several roads in their town in districts, and in the application of the road money shall have due regard to the interests of all sections. {Id. § 8.) Return to original system.— K-aj town in the State which has changed the manner of working and repair- ing the highways as above set forth, and desires to re- turn to the former system, may do so by complying with the provisions of chapter 31 of the Laws of 1879, viz. : Upon the written application of twenty taxpayers of any such town, it shall be the duty of the justices or PEKFORMAKCE OF HIGHWAY LABOR. 213 other officers, who preside at the town elections of any such town, to submit to the electors, and the electors of any such town may vote at the next regular annual meeting upon the question of returning to the said former system of working and repairing the highways, such vote shall be by ballot, upon which shall be writ- ten or printed respectively, "for returning to the sys- tem of working and repairing the highways, provided for in article second and article third of chapter six- teen, title one, part one of the Revised Statutes," and " against returning to the system of working and re- pairing the highways, provided for in article second and article third of chapter sixteen, title one, part one of the Revised Statutes." The ballots shall be deposited in a separate box by themselves, be counted by the inspectors of election, or other officers presiding at such town election, and if a majority of the electors shall vote in favor of re- turning to said former mode, the town voting therefor may avail itself of the privileges of this act and of said article second and article third of chapter sixteen, title one, part one of the Revised Statutes, upon caus- ing a minute of its action to be entered by the town clerk in the town records. 214 THE LlW OP HIGHWAYS. CHAPTER VIII. LAYING OUT HIGHWAYS. 1. Commissioners to lay out. 2. Application. 3. Survey. 4. Order to be posted. 6. Consent of owner, when necessary. 6. Oath of freeholders, when necessary. 7. How laid out across railroad tracks. 8. Between different towns or counties. 9. Width of roads. 10. Roads along division lines. 11. Removal of fences. 12. To be opened and worked within six years. 13. What roads are public highways. 14. When turnpike roads become high- ways. 1^ Special commissioners to lay outroads 16. Papers, when and where filed. 1. Commissioners to Lay Out. A highway can be created only by laying it out and recording it under the laws of this State, or by a pub- lic use for twenty years or more. Working a private way as a highway does not make it such. {Miller v. Oarlock, S Barh. 153.) The commissioners of highways have power, in the manner and under the restrictions hereinafter pro- vided, to lay out, on actual survey, such new roads in their respective towns as they may deem necessary and proper ; and to discontinue such old roads and highways as shall appear to them, on the oaths of twelve freeholders of the same town, to have become unnecessary. (1 R. 8. 502, § 2.) One who has a title to real estate is a freeholder, irrespective of the amount or value of his interest therein. {People v. Scott, 8 Hun, 566.) In laying out a highway the commission- ers exercise a special and limited jurisdiction, and LAYING OUT HIGHWAYS. 215 ^although it may be presumed, until the contrary appears, that they have acted legally, their acts may be impeached by showing that they have exceeded their powers. If they have no jurisdiction, as where they lay out a road through a yard or building, with- out the owner' s consent, their order is void, and is not Tielped by an affirmance on appeal. {Ex parte Clap- per, 2 mil, 458; Miller v. Brown, 56 JY. Y. E. 383.) Two commissioners may act. — Any two commission- ers of highways of a town may make the order laying out a highway, provided it shall appear in the order Hied by them that all the commissioners of highways of the town met and deliberated on the subject em- braced in the order, or were .duly notified to attend a meeting of the commissioners for the purpose of delib- erating thereon. (1 M. 8. 525, § 125.) An order laying out a highway through improved, inclosed or cultivated lands, signed by only two of the commissioners, and not reciting that the third participated in the proceed- ings, or was notified to do so, is void. {People v. Hynds, 30 N. J. R. 470 ; Stewart v. Wallis, 30 Barh. 344.) The order must be sufficient on its face. Its -defects cannot be helped out or supplied by parol. {Id.) Where the third commissioner did not partici- pate in the proceedings, the order must show that he was duly notified to attend the meeting for the pur- pose of deliberating on the subject of laying out the road. A simple allegation that he had been duly no- tified to attend is insufficient. {Fitch v. Oommission- •ers'of KirMand, 22 Wend. 132.) The survey must be incorporated in the order, and the record of the laying out of the road may be impeached by any person inter- ested in it. {Pratt v. People, 13 Hun, 664.) An order purporting to accord with a survey recorded at the 216 THE LAW OF HIGHWAYS. same time is a substantial compliance with the statute. {McCarthy v. WJialen, 19 Hun, 503 ; Van Bergen v. Bradley, 36 iV. T. 316.) 2. Application. Every person liable to be assessed, for highway labor may apply to the commissioners of highways of the town in which he shall reside, to alter or discontinue any road, or to lay out any new road. Every such application shall be in writing, addressed to the com- missioners, and signed by the person applying. (1 R. 8. 513, § 54.) So every person liable to be assessed for highway labor, and owning lands in a town in which he is not a resident, may apply to the commissioners of highways of the town in which the lands are situ- ated to alter, discontinue, or to lay out any road through the same. (Laws 1836, chap. 122.) The word " same " in this act refers to the town and not to the lands of non-residents ; so that a non-resi- dent owning lands in a town, and assessed for high- way labor, is placed on equal grounds with residents as to application. {Peoples. Eggleston, 13 How. 123 ; for form of application, see Appendix No. 42.) It is no objection to proceedings for laying out a highway that they are taken on the application of a person not liable to assessment for highway labor. The commissioners may even proceed to lay out a road on their own motion, and without application by any person. {Marble v. Whitney, 28 N. T. R. 297 ; Peo- ple V. Supervisors of Richmond, 20 N. T. R. 252 ; Oould V. Glass, 19 Barb. 179 ; see contra, Harrington V. People, 6 Barb. 611.) It is not necessary that the application should be in writing. {McCarthy v. Wha- len, 19 Hun, 503.) It may lawfully include a portion LAYING OUT HIGHWAYS. 217 of a highway already in existence, and may for a por- tion of its distance be laid upon, and identical with an existing highway. {People v. Town of Milton, 37 N. T. R. 360.) But the statute does not authorize an application to lay out an old road as a public high- way. {Christy V. Newton, QO Barb. 2.^2.) Notice of Application. — Where the application is for a road through inclosed, improved or cultivated land, notices in writing must be posted up at three of the most public places of the town, specifying, as near as may be, the route of the proposed highway, the several tracts of land through which the same is pro- posed to be laid, and the time and place at which the freeholders will meet to examine the gi'ound. Such notices are to be posted up at least six days before the time specified for the meeting of the freeholders. (1 R. S. 514, § 59.) In laying out such road the commis- sioners are not limited to the route specified in the application, but may, in the exercise of a sound discre- tion, make such variations as they think proper. The departure, however, from the route of the proposed highway must not be so great as to induce the belief that the preliminary proceedings have been wholly disregarded ; the general course of the road must be preserved. {Hallock v. Woolsey, 23 Wend. 328 ; Mc- Carthy V. Whalen, 19 Hun, 503 ; for form of applica- tion and notice, see Appendix Nos. 42, 46.) 3. Survey. By Laws of 1875, chap. 482, § 11, the boards of supervisors of the several counties are empowered to authorize and direct the highway commissioner or com- missi' ners of any town to cause surveys to be made at S18 THE LAW OF HIGHWAYS. the cost of the town, of any or all highways in such town, and to make a complete and systematic record thereof, or to revise, collate and rearrange existing records of highways and to correct and verify the same by new surveys, and to establish the location of highways by suitable monuments whenever such com- missioner or commissioners may deem expedient. Such records so made or revised, corrected and veri- fied, shall be deposited with the town clerk of such town and shall thereafter be the lawful records of the highways which they describe, but shall not affect rights pending in any judicial proceedings commenced prior to the deposit with the town clerk of such new -or revised records. Whenever the commissioners of highways shall lay out, alter or discontinue any road, either upon appli- cation to them or otherwise, they shall cause a survey to be made of such road, and shall incorporate such survey in an order, to be signed by them, and to be filed and recorded in the office of the town clerk, who shall note the time of recording the same (1 JR. S. 513, § fiS) ; but if it is attached to it, that is sufficient. All the commissioners should sign the order. {Van Bergen v. Bradley, 36 If. Y. R. 316 ; Pratt v. People, 13 Hun, 664 ; Williams v. People, 36 N. T. B. 443 ; iorform of survey and order, see Appendix No. 44.) It is a sufficient survey to run a single line which will be intended as the centre of the road, unless something appears on the record of the commissioners to show that such was not their intention, and a speci- fication of the quantity of land which the road will take from each proprietor over whose grounds it passes, will ascertain its width. {People v. Commissioners of BedhooJc, 13 Wend. 310 ; People v. Commissioners of Salem, 1 Cow. 23.) The fact that but two of the com- LAYING OUT HIGHWAYS. 219 missioners of highways were present when a proposed 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 prf-sumed that the third commissioner met and con- sulted with them in reference to their proceedings, at or before the time the paper was signed. {Tucker v. Rankin^ 15 Barb. 471.) The survey is a mere minis- terial act, not requiring the presence of the third com- missioner to give validity to an order laying out and establishing thu highway. {Marble v. WMtney, 28 N. Y. R. 297.) The clerk, in recording the survey, acts as ministerial officer, and he cannot refuse to record it because of some supposed omission or mistake in the name of one of the commissioners, or because the commissioners had not taken the oath of office and filed a certificate of the oath. The clerk may be compelled, by man- damus, to record the survey. {People v. Collins, 7 John. 549.) All roads or highways laid out by commissioners since December 31, 1805, and prior to April 14, 1826, are confirmed, provided such commissioners shall have caused a survey to be filed and recorded. {Parker v. Van Houton, 7 Wend. 145.) 4. Order to be Posted. It shall be the duty of the town clerk, whenever any order of the commissioners for laying out, altering or discontinuing a road shall be received by him, to post a copy of such order on the door of the house where the town meeting is usually held ; and the time here- inafter limited for appealing from any such order shall be computed from the time of recording the same. (1 220 THE LAW OF HIGHWAYS. a. S. 513, § 56 ; see form of order, Appendix No. 44.) 5. Consent of Owner, when Necessary. *) No public or private road shall be laid out through any orchard or garden without the consent of the owner thereof, if such orchard be of the growth of four years, or more, or if such garden have been cultivated for four years or more before the laying out of such road. Nor shall such road be laid out through any buildings or any fixtures or erections for the purpose of trade or manufactures, or any yards or inclosures necessary to the use and enjoyment thereof, without the consent of the owner. Unless the commissioners of highways shall, on application duly made, after five days' notice to the owner, or if he be a non-resident of the town, to the occupant of said premises, certify to the county judge that the public interest will be greatly promoted by. the laying out and opening of such road, the com- missioners shall serve on the owner, or if he be a non- resident of said town, on the occupant of said land, a notice of five days, to appear before the county judge to attend the hearing of said matter ; if the county judge shall affirm the decision of said commissioners, they shall present the order of the county judge for confirmation to the supreme court, at a general term, in the judicial department in which said premises are situated upon the usual notice of motion in said court to the owner, or if he be a non-resident of the town to the occupant of the premises ; if said court shall con- firm the said order, it shall then be the duty of the commissioners to proceed and lay out and open said road, as in other cases. (1 H. S. 514, § 57, as amended Laws 1873, chap. 773.) The restrictions on the powers of the commissioners LATING OUT HIGHWAYS. 221 apply only to cases where the owner withholds his consent. The commissioners may lay out a road through any kind of property with the consent of the owner. {Lansing v. Caswell, 4 Paige, 523.) Consent. — The oral consent of the owner to the laying out of a highway through his orchard, garden, fixtures, etc., is valid, provided it be acted upon immediately by the commissioners, and the road laid out before any revocation of such consent. But such consent is revo- cable, and is revoked by a sale and conveyance of the land in good faith before the road is laid out. (People V. Goodwin, 5 N. T. B. 568 ; McCarthy v. WTialen, 19 Hun, 503.) Although such consent may be revoked, it must be done before the road is laid out. If the commissioners have acted on the faith of the verbal consent, by laying out the road, the owner will be estopped from denying the legality of the act. {Mar- ble V. Whitney, 28 N. T. B. 297.) Where such consent has been given under a mistake of law merely, no relief can be given, even on a bill in equity, filed for that purpose. {Id.) And consent may be inferred from the acts and con- duct of the owner. Thus, if he appear before the referees on appeal and litigate the question of damages, his consent may possibly be presumed. {Lansing v. Caswell, 4 Paige, 523. For form of consent, see Ap- pendix No. 54.) Orchard. — Commissioners of highways cannot lay out a road through an orchard of four years' growth without the consent of the owner, except as above.* But this restriction does not prevent them from laying * Roads may be laid out through orchards In Westchester and Putnam counties. (Laws 1831, chap. 300.) 222 THE LAW OF HIGHWAYS. out a road through an enclosed field because there are fruit trees in any part of it, however distant they may be from the highway. It does not follow that a whole field is an orchard because there are fruit trees in some part of it. But the road cannot be laid out in such a manner as to deprive the owner, either in whole or in part, of the beneficial enjoyment of his fruit trees. {People V. Judges of Dutchess, 23 Wend. 360.) In the latter case there were two apple trees standing in the lane where a road had been laid out, which trees had formerly belonged to the orchard, but had been separ- ated from it by a fence for several years. They stood in an open lane contiguous to the public highway; thev had not been trimmed, and no care had been taken of them for a long time ; and one of the trees was dead and the other nearly so, and in the opinion of witnesses, would never bear fruit again. The lane in which the trees stood had long been a common passage way from the public road to a saw mill, and was used at pleasure by the customers of the mill owner, with the consent of the proprietor of the land, the court held that the locus in quo was not an orchard within the meaning of the statute. So it seems the commis- sioners have no right to deprive an owner of the bene- fit of his fruit trees, in an orchard of the growth of four years or over, by an order for the opening of an old road to the width of two rods. {Snyder v. Plass, 28 JV. Y. B. 478 ; Snyder v. Trumpbour, 38 id. 355.) If a highway is laid out through an orchard of four years' growth, without the consent of the owner, the commissioners of highways, and their agents, will be trespassers if they enter upon the premises to open and work such highway. {Harrington v. The People, 6 Barh. 612.) LAYING OUT HIGHWAYS. 223 Garden. — To prevent the laying out of a highway through a plat of land, on the ground that it is a gar- den, it must appear that such land has been cultivated as a garden for four years or more before the laying out of such highway. What constitutes a garden is a question of fact. The general definition is, a piece of ground appropriated to the cultivation of herbs or plants, fruits or flowers. {People v. Gom'-rs Oreen- hurgTi, 57 M. T. R. 549 ; People v. Horton, 8 Hun^ 357.) 5mZ(^m^.-— Though the commissioners are not au- thorized to lay out a road through any building with- out the owner' § consent, yet the erection or removal of a building upon the proposed line of a road, after an application therefor, for the purpose of defeating such application, cannot have that effect, but the road may be laid through it. {Car r is v. Commissioners of Waterloo, 2 Hill, 443.) If the commissioners exceed their jurisdiction by laying out a road through a build- ing, without the owners consent, the order is void, and is not helped by the affirmance of the judges on appeal. {Ex parte Clapper, 3 Hill, 458.) Fixtures or erections.- — Only such fixtures or erec- tions are exempt as are for the purposes of trade or manufacture. Over other fixtures and erections a road may be laid out by the oaths of freeholders, unless such fixtures and erections amount to buildings. The tenter bars of a fulling mill are within the prohibition. {Clark V. Phelps, 4 Cow. 190.) So the incline plane of a railroad, with its ropes and fixtures, are fixtures and erections for the purpose of trade within the statute. {Mohawk, &c., R. R. v. Artch&r, % Paige, 83.) A ditch or oanal, by which water is conducted to a 224 THE LAW OF HIGHWAYS. mill, is not a buUding, fixture or erection within the meaning of the statute. {People v. Kingman^ 24 N. Y. H. 559.) The term "erection" implies some struc- ture super-imposed upon the land ; and means some- thing which a highway may be laid through, and which would be rendered useless by the act. (Id.) What are or are not fixtures and erections, within the above statute, is a question of fact, to be deter- mined in each case in reference to the situation and nature of the property. Yard or enclosure. — It is not every yard or enclo- sure which is appurtenant or contiguous to a building, or fixture, or erection for the purpose of trade or man- ufactures, through which the commissioners are pro- hibited from laying out a road or highway. It is only such yards or enclosures as are necessary to the use and enjoyment of such building, fixtures or erection. This clause must be construed with reference to the situation and nature of the property to which the yard or enclosure is appurtenant. {Lansing v. Cas- well, 4 Paige, 523.) In the country, where there is an abundance of vacant land which may be appropriated for the purpose of making roads, and where the public would be equally well accommodated by the laying out of the road through such lands, it would be highly improper for the commissioners of highways to attempt to lay out a road through a court yard or enclosure attached to a dwelling-house or manufactory, although such yard or enclosure was not absolutely necessary to its use or enjoyment. But in the case of urban prop- erty, where vacant ground for the location of streets is not easily obtained, and where a particular location is frequently a matter of importance to that part of the community for whose accommodation the street LAYING OUT HIGHWAYS. 225 or highway is principally intended, the restriction is more limited. {Id.) It is not necessary that the yard should be protected by fences, but it must be defined in some way, either by an enclosure, by visible marks, or by a definite occupation within certain exterior lines. {People v. Kingman, 24 N. Y. H. 562.) Thus, where there was unoccupied land adjacent to a saw mill, and belonging to the mill owner, a portion of which was used to deposit logs, and to pile lumber, it was held that the commissioners could lay out a road through such land, but were bound to leave land enough, between the road and the mill, out of which the owner could form a mill-yard. {Id.) The extent of the area to be thus left is not a question affecting their jurisdiction, but is a matter which the law has committed to their official discretion. It is possible that a clear abuse of their authority might subject them to an action on the case at the suit of the party injured ; but, so far as the public is concerned, the highway thus laid out is a legal highway, and it is the duty of the commissioners to proceed to open it. • {Id.) The term " yard or enclosure " applies as well to the court yard contiguous to a building or dwelling as to lands adjacent to trade fixtures and erections. {Clark V. Phelps, 4 Cow. 190 ; Lansing v. Caswell, 4 Paige, 619.) And where the commissioners had laid out a road through the door-yard of a person, leaving his well, cow-shed, and part of his corn-crib in the street, it was held that the proceeding was void on the ground of excess of jurisdiction. {Ex parte Clapper, 3 Hill, 458.) A highway cannot be laid out over grounds acquired by a railroad corporation for the site of an engine house, &c., necessary for its use at a station. {Albany Northern R. R. Co. v. Brownell, 24 N. Y. R. 345.) 16 226 THE LAW OF HIGHWAYS. A highway may be laid along a ditch or canal by which water is conducted to a mill, and it may com- prehend such 'ditch or canal, in whole or in part, within the limits of the road ; but if it is necessary to work the road to its entire width, it must be done by so constructing a bridge or roadway over the channel as not to obstruct the flow of water. {People v. King- man, 24 iV. T. R. 559.) The commissioners, in laying out a highway, exer- cise a special and limited jurisdiction, and although it may be presumed, until the contrary appear, that they have acted legally, it is quite clear that their acts may be impeached by showing that they exceeded their power. {Ex parte Clapper, 3 Hill, 458.) The Legislature has power to appoint commissioners to lay out an avenue in a town, although there are already three commissioners of highways in such town competent to act. Such commissioners are not town officers. {Hanlon v. Supermsors of Westches- ter, 57 Barb. 383.) Soldiers monument. — No road or street shall be laid through lands held by a soldiers monument asso- ciation, without the consent of the trustees thereof, except by special permission of the Legislature. (Laws of 1866, chap. 273, § 6.) Graveyard. — No private or public road shall be laid out or constructed upon or through any grave yard or burying ground in this State, unless the remains therein contained are first carefully removed and prop- erly reinterred in some other burying ground, at the expense of the persons desiring the road. ^ (Laws 1868, chap. 843.) LAYING OUT HIGHWAYS. 227 Cemetery associations. — By chapter 133, of the Laws of 1847, as amended by chapter 708, of the Laws of 1869, cemeteries are exempt from taxation, and during the time they shall remain dedicated to the purposes of a cemetery, no street, road, avenue or thoroughfare shall be laid out through such cemetery, or any part of the lands held by such association for the purposes aforesaid,' without the consent of the trustees of such association, except by special permission of the Legis- lature of the State. Vineyards. — Private lands on which grape vine- yards have been planted, and have had one or more year's growth, shall not be taken for public highways or private roads, except with the consent of the owner or owners thereof. This act shall only apply to lands used in good faith for vineyard purposes, and shall not apply to lands within the corporate limits of any city or village, nor to any lands on which a vineyard shall hereafter be planted, after an application for the opening of a road therein shaE have been made. (Laws of 1869, chap. 24.) 6. Oaths op Preeholdeks, when Necessary. No highway shall be laid out through enclosed, im- proved or cultivated land without the consent of the owner or occupant thereof, unless certified to be neces- sary by the oath of twelve reputable freeholders of the town, in the manner hereinafter provided. (1 R. S. 514, § 68.) The number seems to have been reduced to nine by chapter 465, of the Laws of 1877. The commissioners have no jurisdiction to lay out a road through enclosed, imiproved or cultivated lands, without either the consent of the owner or occupant, 228 THE LAW OP HIGHWAYS. or unless certified to be necessary by the oath of repu- table freeholders. When speaking of improved land it is generally understood to be such as has been reclaimed and is used for the purposes of husbandry, whether appropriated to tillage, to meadow or to pas- ture. Although the above section used the words " owner or occupant,^'' it can hardly be supposed that where the land is occupied by a tenant, his consent would be suflicient. In such case the consent of both owner and occupant should be obtained. The consent need not be in writing. {Noyes v. Chapin, 6 Wend. 461 ; People v. Albright, 14 Abi. 305 ; 23 How. 306 ; Clark V. Phelps, 4 Cow. 202.) Freeholders' certificate. — -The statute by freeholders, means such as have the legal title to real estate^ — such as are freeholders without a proceeding in court to make or declare them so ; a legal title to land is i-equi- site. {People v. Hynds, 30 N. T. R. 472.) It will be presumed by the court, that the freeholders who certify to the necessity of the road were reputable freeholders. {Clark V. Phelps, 4 Cow. 190.) If there be not a certifi- cate by twelte freeholders, the subsequent proceeding will be void, as where one omits to sign the certificate, or is not a freeholder. {Town of Gallatin v. Loucks, 21 Barb. 578 ; People v. Commissioners of Seward, 27 Barb. 94; People v. Hynds, supra.) But the Laws of 1877, chap. 465, makes nine a sufficient number. A recital in the order laying out a road, that twelve freeholders have certified as to its necessity, is not conclusive evidence of the fact. That being a jurisdic- tional fact, is open to contradiction. {People v. Com- missioners of Seward, supra.) The commissioners have no right to require an undertaking from the ap- plicant to pay all damages sustained through laying LATING OUT HIGH WATS. 229 out the highway. {Ham v. Silver nail, 7 Hwn, 33.) The certificate is not invalidated by proof that the landholders consented verbally to claim no compensa- tion, but had subsequently revoked that consent. ( Yan Rensselaer y. Yan Alstyne, 3 Abh. Ct. of Ap. Dec.) Notice of application. — Every person who shaU apply for the laying out of the highway through any such land, shall cause notices in writing to be posted up at three of the most public places of the town, specifying as near as may be the route of the proposed highway, the several tracts of land through which the same is proposed to be laid, and the time and place at which the freeholders will meet to examine the ground. Every such notice shall be posted up at least six days before the time specified therein for the meeting of the freeholders. (1 B. S. 514, § 59,) It is not necessary for the applicant to specify courses and distances. That is the business of the commision- ers, if they conclude to lay out the road. The appli- cation will be sufficient if it give the termini and gen- eral route of the proposed road. {People v. Judges of Dutchess, 23 Wend. 360 ; Hallock v. Woolsey, id. 328 ; for form of notice, see Appendix No. 43.) Proceedings tTiereon. — In all cases of the alteration of any road or the laying out of any new road, except where the same is altered, opened or laid out with the consent in writing of the owner or owners of the land to be taken for such alteration or opening, the person or persons applying for the same shall serve a notice on the town clerk of the town, and on a justice of the peace and the commissioner or commissioners of high- ways thereof, asking for a jury to certify to the neces- sity of the same, and specifying a time not less than 230 THE LAW OF HIGHWAYS. ten nor more than twenty days from the time of serv- ing such notice, when such jury will be drawn at the clerk's office of the town by the town clerk thereof, and shaU notify, in writing, each of the owners or occu- pants through which such alteration or new road is proposed to be laid, of the time and place of drawing such jury, by personally serving such notice on such owner or occupant, at least five days before the drawing of such jury, or by mailing a copy thereof at least eight days before such drawing to such owner or owners, in the manner prescribed by law for the service of legal notices. (Laws of 1877, chap. 465 ; for form of notice, see Appendix No. 47.) Drawing of jury. — At the time and .place men- tioned the town clerk of such town, having received such notice that such jury is to be drawn, shall, in the presence of a justice of the peace, or one of the com- missioners of highways of the town, deposit in a box the names of all persons then residents of his town whose names are on the lists filed in said town clerk's office, of those selected and returned as jurors, pursu- ant to article second, title four, chapter seven, part third of the Revised Statutes, who are not interested in the lands through which such road is to pass or be located, nor of kin to the owner thereof, and shall publicly, in the presence of such justice of the peace or commissioner, draw therefrom the names of twelve persons, and shall make a certificate of such names and the purposes for which they were drawn, and shall deliver the same to the person asking for the jury, and the applicant for such jury shall pay to the said town clerk one dollar for drawing such jury. {Id.') Summoning jury. — The applicant for such road LATING OUT HIGHWAYS. 231 or alteration of a road on receiving such certifi- cate, shall deliver the same to a justice of the peace of the town wherein the road is to be laid, and it shall be the duty of such justice forthwith to issue a summons to one of the constables of said town, directing him to summon the persons named in said ■certificate, specifying a time and place in said sum- mons at which the persons to be summoned shall meet, which shall not be less than ten nor more than twenty days from the issuing thereof ; and in case the owner or owners of any lands through which said roa,d or alteration is proposed to be located shall be a non-resi- dent it shall be the duty of such justice to notify such owner or owners by mail, at least eight days be- fore the meeting of such jury, of the time and place of such meeting, and if any person so summonpd to attend as a juror shall neglect or refuse to attend at the time and place designated in such summons, the person or persons so neglecting or refusing to attend shall be liable, unless a sufiicient excuse be established, to pay a fine of five dollars, which shall be sued for and recovered by the overseers of the poor of said town, and such fine shall be applied by them to the sup- port of the poor thereof. {Id. / Commissioners of Carmel v. Judges of Putnam,., 7 Wend. 264.) The term "kin" includes all related within the ninth degree. {People V. Cline, 23 Barh. 197 ; for form of summons, see Appendix No. 48.) Number, &c. — If nine or more of the persons, who shall have been so drawn, not interested in the lands through which the road is to be laid, nor of kin to the owners thereof, shall appear at the time and place specified in the summons, they shall then be sworn by the justice of the peace who issued such summons well 232 THE LAW OF HIGHWAYS. and truly to certify as to the necessity of the highway applied for, and if such justice of the peace shall refuse or neglect to attend at the time and place mentioned in said summons, such oath may be administered to such juror, by any other justice of the peace of said county ; and the justice of the peace swearing such jury shall receive therefor from such applicant the sum of two dollars. Such jury shall then personally examine the route of such highway, and shall hear any reasons that may be offered for or against such pro- posed route or alteration. If nine or more of the num- ber thereof shall be of opinion that such highway or alteration of a highway is necessary and proper, they shall make and subscribe a certificate in writing to that effect, which shall be delivered to the commission- ers of highways of the town. But if such number thereof shall not certify that such road or alteration is necessary, then no application for such road or altera- tion shall be made again in three months. (For foi'm of certificate, see Appendix No. 49.) Fees. — Every juror shall be entitled to receive for his services as such juror the sum of one dollar and fifty cents, to be paid by such applicant, and the con- stable who may summon such jury, shall receive there- for from such applicant therefor, ten cents for sum- moning each juror summoned, and ten cents a mile for each mile actually and necessarily traveled in sum- moning such jury, in going from and returning to his place of residence therefor. If nine or more of such jurors shall make a certificate that such highway or alteration is necessary and proper, then the cost of such proceedings as hereinbefore provided shall be a charge against such town in favor of such applicant. The commissioners of highways shall decide upon. LAYING OXTT HIGHWAYS. 233 such application for sucli road or alteration within thirty days after the decision of the jury, by an order in writing, -which shall be filed in the office of the town clerk of such town. {Id.) This act shall not affect any proceedings in relation to the laying out of any highway instituted under chapter two hundred and seventy-one, of the Laws of eighteen hundred and seventy-six, nor any proceed- ings of appeal therein. (Laws 1877, chap. 465, § 3.) Certain towns are exempt from this law. (Laws 1880, chap. 114, § 1.) The commissioners have no authority to act untU nine freeholders certify to the necessity of the road. If there are not that number of qualified freeholders, all subsequent proceedings will be void. {Commis- sioners of Carmel v. Judges of Putnam, 7 Wend. 264; People v. Hynds, BO N. T. B. 472.) See the remarks above, as to the character and qualifications of the freeholders. To examine route. — They shall then personally ex- amine the route of such highway, and shall hear any reason that may be offered for or against laying out the same. If they shall be pf opinion that such high- way is necessary and proper, they shall make and sub- scribe a certificate in writing to that effect, which shall be delivered to the commissioners of highways of the town. (1 M. S. 514, § 61 ; for form of certificate, see Appendix No. 49.) The freeholders act upon the notice of the applicant and general description of the route therein, and have no authority to locate it with greater particularity. They determine whether such highway is necessary and. proper, leaving the particular route to the decision of those whose business it is to lay out the road, {Hal- 234 THE LAW OF HIGHWAYS. lock V. Woolsey, 23 Wend. 328 ; People v. Judges of Dutchess, 23 Wend. 360.) This certificate should be filed in the town clerk's oflBLce. It is a public docu- ment, open for inspection by all the inhabitants of the town in which the road is laid out ; and, if it come into the hands of a stranger, not a commissioner of highways, the court will compel him by attachment to file it with the town clerk. {People v. Vail, 2 Cow. 623.) But omitting to file the certificate at the time of making the order laying out a road does not affect the proceedings. {Cominissioners, &c., v. Meserole, 10 Wend. 122.) Notice to occupants. — Before the commissioners shall determine to lay out the highway so applied for and certified, they shall cause notices in writing to be given to the occupant of the land through which the road is to run, of the time and place at which they will meet to decide on the application. The notice shall be served by delivering the same to such 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. (1 R. 8. 514, § 62 ; for form of notice, see Appendix No. 50.) The commissioners may refuse the application to lay out the road, even after the jury have certified to its propriety. The notice is to be served on the occupant of the land. An occupant may have very little interest in the premises. It is his duty, however, if a tenant, to notify his landlord. Without such notice, the com- missioners have no authority to proceed, and the fact that the occupant was present and sworn as a witness, will not be deemed a waiver of noticed {People v. Os- horn, 20 Wend. 186 ; People v. Judges of Herkimer, LAYING OTJT HIGHWAYS. 235 20 Wend. 186 ; People v. Supervisors Allegany, 36 Howard, 544.) Description of road. — The commissioners shall meet at the time specified in the notice, and shall hear any reasons that may be offered for or against laying out the highway. If they shall determine to lay out such highway, they shall make out and subscribe a certifi- cate 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. (1 R. S. 514, § 63 ; for form of certifi- cate, see Appendix No. 47.) The determination of the commissioners must be con- fined to the highway applied for, but they are not limited to the precise route specified in the application ; they may, in the exercise of a sound discretion, make such variations as they may think proper. The de- parture, however, from the proposed route must not be so great as to induce the belief that the preliminary proceedings have been whoUy disregarded ; the general course of the road must be preserved. {Hallock v. Woolsey, 23 Wend. 328 ; Woolsey v. TompMns, 23 Wend. 324.) The certificate of the commissioners required by the above section will be sufficiently conformable to the statute, if in the description of the road a single line is given with the courses and distances. {Id.) Since the statute prescribes the width, an order laying out a road is sufficiently explicit if it specifies the central line. {Lawton v. Commissioners of Cambridge, 2 Caines, 179 ; People v. Commissioners of Salem, 1 Cow. 23.) If a single line is run, it must be intended to be the centre of the road, unless something appears from the record to show that such was not the inten- 236 THE LAW OF HIGHWAYS. tion of tlie commissioners. {People y. CoTnmissioners of Redhook, 13 Wend. 810.) When a single line is run, and a specification given of the quantity of land which the road will take from each proprietor over whose grounds it passes, the width may be ascertained by a simple calculation. {Id.) It is also held, that the certificate of the commissioners will be sufficient if it state the termini (that is the beginning and end) of the road, and its route by courses and distances ; it is not necessary that it state the bounds of each course. ( Woolsey v. TompMns, 23 Wend. 324 ; Tucker v. Ran- kin, 15 Barb. 471 ; Pratt v. People, 13 Hun, 664.) It is advisable, however, that all the bounds and width, as well as the courses, be particularly stated, to avoid uncertainty and controversy. (See Appendix No. 47.) Certain towns exempted. — All towns of this State whose real estate is assessed, as shown by their last assessment-roll, at an average price of less than five dollars per acre, are hereby exempted from the pro- visions of chapter 431 of the Laws of 1875, entitled " An act to amend an act entitled 'An act to amend the Revised Statutes in relation to laying out public roads and the alteration thereof,' " of which the Law of 1877 is an amendment. (Laws 1880, chap. 114, § 1). Laying out roads in exempt towns. — The commis- sioners of highways of each of such towns so ex- empted from the provisions of the aforesaid act shall hereafter, upon written petition of six freeholders of such town praying for the laying out, alteration or discontinuation of any highway, and within thirty days from the date of such petition, proceed to the laying out, alteration or discontinuation of the road designated therein, and adjust, in the manner pro- LAYING OUT HIGHWAYS. 237 Tided in the following section, all matter of damages arising from sncli laying out, alteration or discontinu- ation of road ; and within ten days from the time such highway shall have been so laid out, altered or discon- tinued and matter of damages relating thereto duly adjusted, said commissioners shall file in the ofiice of the clerk of such town their order therefor containing a correct survey of the laying out, alteration or discon- tinuation of such road, and a statement of the amount of damages allowed for the same ; and, thereupon, the proceedings of said commissioners shall be deemed lawful, and any road, or alteration of road so laid out, shall become a highway and remain open to public travel. {Id. § 2.) Qommissioners to adjust damages. — The commis- sioners of highways of such town are authorized to adjust with owner or owners of lands upon which roads shall be laid out, discontinued or altered as aforesaid, any claim for damages by reason thereof, providing the amount allowed by said commissioners for each of such claims shall not exceed fifty dollars ; and any sum so allowed by said commissioners in set- tlement of such damages claimed as aforesaid, not ex- ceeding the said sum of fifty dollars, shall be a charge against the town in which such roads are located, to be audited by the board thereof ; but whenever any person so entitled to damages by reason aforesaid, shall conceive himself aggrieved by the adjustment of such damages as offered by said commissioners, or when- ever said commissioners shall deem the value of such damages to exceed the aforesaid sum of fifty dollars, then said commissioners shaU forthwith apply to any of the justices of the peace of such town to cause to be drawn, by the usual process of a justice court, a 238 THE LAW OF HIGHWAYS. jury of six freeholders, residents of such town, not of kin to the party or parties claiming said damages, nor interested therein, and upon notice of not less than six nor exceeding ten days issued by said justice aad duly served upon each of said jurors and each of the parties claiming said damages ; such jury so drawn, constituted, sworn and duly notified shall meet with the said commissioners of highways at the time and place stated in said notice to take a view of the road and premises for which said damages are claimed, to esti- mate the true nature and value of such damages and give their award for the same ; and such award duly given in writing, signed by each of said jurors and certified by the said commissioners of highways, shall be deemed a final adjustment of such damages, and the same shall become a lawful charge against the town in which such road is located, to be audited by the board thereof. {Id. § 3.) Jurors fees. — Each person acting as juror in the manner provided in the foregoing section shall receive one dollar per day of actual service, and the fees of the justice of the peace and constable for summoning such juries and issuing and serving notices shall be the same as those provided by law for the impaneling of juries by justice courts and serving of notices therefor, and the same shall be a charge against the town for which such services have been rendered. {Id. § 4.) 7. How Laib out Across Railroad Tracks. It shall be lawful for the authorities of any city, vil- lage 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 raUroad now laid. LAYING OUT HIGHWAYS. 239 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 notice of laying out has been served personally upon the president, vice-president, treasurer or a directer of such corporation. (Laws 1853, chap. 62, § 1 ; see form No. 51.) A highway cannot be laid out over grounds acquired by a railroad corporation for the site of an engine house, &c. , necessary for its use at a station. {Albany Northern Railroad Company v. Brownell, 24 N. Y. H. 345.) The above statute does not violate the con- stitutional provisions against taking private property for public use, or impairing the obligation of contracts. {Id.) The term "track" does not include grounds upon which tracks are laid for storing cars, or exclu- sively for making up trains. (Boston and Albany B. R. V. Tillage of Oreenbush, 52 N. T. 510.) Railroad corporations to take road across their trades. — It shall be the duty of any railroad corpora- tion across whose track a street or highway shall be laid out as aforesaid, 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, excavations and other work to be done on their road for that purpose ; and all the provisions of the act passed April second, eighteen hundred and fifty, in relation to crossing streets and highways, already laid out, by railroads, and in relation to cattle guards, and other securities and facilities for crossing such roads, shall apply to streets and highways here- after laid out. (Laws 1853, chap. 62, § 2.) Penalty for neglect or refusal. — If any railroad cor- 240 THE LAW OF HIGHWAYS. poration shall neglect or refuse, for thirty days after the service of the notice aforesaid, to cause the neces- sary work to be done and completed, and improve- ments made on suoh streets or highways across their road, they shall forfeit and pay the sum of twenty dollars for every subsequent day's neglect or refusal, to be recovered by the officers laying out such street or highway, to be expended on the same ; but the time for doing said work may be extended, not to exceed thirty days, by the county judge of the county in which such street or highway, or any part thereof, may be situated, if in his opinion the said work cannot be performed within the time limited by this act. {Id. § 3.) A railroad company carrying a highway over the track is bound to keep the approaches thereto in suit- able repair. {People v. N. Y. C. & H. R. R. 74 N. Y. 302.) The railroad corporation has the right to determine where the crossing shall be located, but regard must be had to the convenience of both parties, and where the crossing is built in an inconvenient place for the one requesting it, he has a right of action. ( Wademan V. A. & 8. R, R. Co. 51 W. Y. R. 568.) The railroad coi-poration has also a right to determine the question as to the expediency of carrying the road over or under the track, but where it would be impracticable to re- store the highway to any reasonable degree of useful- ness by a particular mode of crossing, that mode would not be permitted. {People v. N. Y. 0. & H. R. R. 74 N. Y. R. 302.) An equitable action may be maintained by one through whose farm a railroad runs against the acting trustees of the road to compel the erection of fences LAYING OUT HIGHWAYS. 241 and the building of a farm crossing. {Jones v. Selig- man, N. T. Ct of Appeals, Junel, 1880.) A railroad is liable for injuries received by reason of a defective crossing. {Matter of P. P. & 0. I. P. P. 20 Bun, 184.) 8. Between Diepeeent Towns oe Counties. Pisagreement 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 shaU disagree with the commissioners of a town in an- other county, relative to laying out a new road, or altering an old road, which shall extend into both counties, the commissioners of both towns shall meet together at the request of either disagreeing commis- sioners, and make their determination upon such sub- ject of disagreement. (1 P. 8. 516, § 72.) Poad upon line of two towns. — Whenever it shall become necessary to have a highway upon the line be- tween two towns, such highway shall be laid out by two or more of the commissioners of highways of each of said towns, either upon such line, or as near thereto as the convenience of the ground will admit, and they may so vary the same either to the one or to the other side of such line, as they may think proper. (1 P. 8. 516, § 73.) How divided into districts.— It shall be the duty of the same commissioners, when they lay out such high- way, to divide it into two or more road districts, in 17 242 THE LAW OF HIGHWAYS. such manner that the labor and expense of opening, working and keeping in repair such highway, through each of the said districts, may be equal as near as may be, and to allot an equal number of the said districts to each of the said towns. (1 B. S. 5] 6, § 74.) Effect of allotment. — Each district shall be consid- ered as wholly belonging to the town to which it shall be allotted, for the purpose of opening and improving the road, and for keeping it in repair ; and the com- missioner 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. (1 R. S. 517, § 75.) Where an encroachment has occurred upon a high- way running on the line between two towns, the com- missioners of both towns cannot unite as plaintiffs, and bring an action to recover the penalty or forfeiture. {Bradley v. Blair, 17 Barb. 480.) Former roads. — AU highways heretofore laid out upon the line between any two towns, shall be divided, allotted, recorded and kept in repair in the manner above directed. (1 R. S. 517, § 76.) The above provisions were not repealed by chapter 311 of the Laws of 1870 {Jones v. Citi/ Utica, 16 Hun, 441), which is : Whenever a highway, street or road shall be on the line between a city, town or village, or between either of them, the officers authorized and required to repair and keep in order the highways, streets and roads in such cityj town and village, shall meet together in the mayor's office in such city, if said highway be on the line between a city and town or a city and village, or at the office of the town clerk of such town, if the LAYING OUT HIGHWAYS. 243 same be on the line between a town and a village, on the first Monday of May in each year, at twelve o'clock M., and divide such highway, street or road, and allot one part thereof to such city and the other to such town or village, or one part thereof to such town and the other to such village, as the case may be, in such manner that the labor and expense of working and keeping in repair such highway, street or road may be equal as near as possible. (§ 1.) Upon the neglect or failure to attend on the part of the officers of any city, town or village, at the time or places designated ia the first section of this act for the purposes therein mentioned, the officers of the city, town or village present may perform the said duty, and when done, the divisions thus made shall be of the same force and effect as if made by the joint action of such city and town, or such city and village, or such town and village. (§ 2.) The statement of the division made pursuant to the provisions of the first or second section of this act shall be reduced to writing and properly authenticated by the officers making the same, and shall be filed within ten days after such division is made in the offi- ces of the city clerk of the city, of the town clerk of the town, and of the clerk of the village between whom such division has been made. (§3.) 9. Width of Eoads. All public roads to be laid by the commissioners of highways of any town, shall not be less than three rods wide, and aU private roads shall not be more than three rods wide. (1 R. S. 617, § 80.) This applies only to roads laid out by the commis- sioners. Where roads are claimed from a user of 244 THE LAW OF HIGHWAYS. twenty years, they may be more or less than three rods wide ; the width will depend on the actual user. {Harlow v. Humiston, 6 Cow. 189.) But the board of supervisors have the power to au- thorize the laying of highways of a greater or less width than is now required by law, and to alter by in- creasing or diminishing the width of highways now in existence. (Laws of 1875, chap. 482, § 10, as amended by Laws of 1876, chap. 257.) It is the duty of the commissioners to order the overseers of highways to open all roads to the width of two rods at least, which they shall judge to have been used as public highways for twenty years. (1 JR. 8. 521, § 101.) The jury, which is called to determine the disputed question of an encroachment, have no power to deter- mine the question of the width and boundaries of a highway, according to the previous dedication or use, which has been neither laid out nor ascertained and described by the commissioners of highways. That duty belongs exclusively to the commissioners, and is to be performed by them in an entirely different man- ner. {Talmage v. Huntiing, 29 JSf. T. B. 447.) Where a road is ordered by the commissioners to be laid out for a part of the distance, three rods in width, and for the residue of the distance, which is on the bed or track of an old road used for more than twenty years, two rods in width, the proceedings are not vitiated and rendered void by the provision in the order, allowing a road to be opened which is only two rods wide. Regarding the first part of the order, laying out the road up to the point of intersection with the old road, as one in perfect accordance with the powers of the commissioners, and the residue, which follows the old road, as a description of the old road to be LAYIKG OUT HIGHWAYS. 245 recorded, and for the purpose of having it opened two rods in width by a subsequent order to that eflEect ; the whole is consistent and harmonious, and entirely within the power of commissioners. {Snyder v. Plass, 28 i\r. Y. B. 465 ; Snyder v. Trvmpbowr, 38 N. T. R. 355.) Where roads are laid out under the statute, they will be deemed to be at least three rods wide, and a person wiU be liable for an obstruction within that width. ( Walker v. Caywood, 81 N. T. R. 51.) The Legislature may appoint commissioners for the purpose of widen- ing a designated street in a village. {People v. Mc- Donald, 69 N. T. R. 362.) 10. KoADS ALONG Division Lines. Whenever a public or private road shall be laid along the division line, between the lands of two or more per- sons, 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 bccuping the lands joining said road, shaU be paid for building and maintaining such addi- tional 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 ascer- tained and determined in the laying highways on private roads. (Laws 1853, chap. 174, § 16.) 11. Removal of Fences. Whenever the commissioners of highways shall have laid out any public highway, through any inclosed, cultivated or improved lands, in conformity to the pro- visions of this title, and their determination shall not 246 THE LAW OF HIGHWAYS. have been appealed from, they shall give the owner or occupant of the land through which such road shall have been laid, sixty days' notice in writing to remove his fences. If such owner shall not remove his fences within the sixty days, the commissioners shall cause such fences to be removed, and shall direct the road to be opened and worked. (1 R. 8. 520, § 96.) If the determination of the commissioners shall have been appealed from, then the sixty days' notice shall be given after the decision of the judges upon such ap- peal shall have been filed in the office of the town clerk of the town. (1 R. S. 520, § 97.) Sixty days' notice must bfi given before proceeding to open the road, as well where it has been established by an alteration made by judges after the same has been laid out by them on appeal, as when a road is originally laid out by commissioners. Actual notice must be shown, as it wUl not be presumed. {Case v. Thompson, 6 Wend. 634.) Though a road has been laid out, the owner is enti- tled to sixty days' notice to remove his fences, and the overseer has no right to abate or remove them without such notice. {Kelley v. Horton, 2 Cow. 424 ; for form of notice, see Appendix No. 52.) 12. To BE Opened and Worked Within Six Years. Every public highway and private road already laid out and dedicated to the use of the public, that shall not have been opened and worked within six years from the time of its being so laid out, and every such highway hereafter to be laid out, that shall not be opened and worked within the like period, shall cease to be a road for any purpose whatever; but the period during which any suit, mandamus, certiorari or other LAYIKG OUT HIGHWAYS. 247 proceeding shall have been, or shall be pending, in regard to any such highway, shall form no part of said six years, and all highways that have ceased to be traveled or used as highways for six years, shall cease to be a highway for any purpose. (1 H. S. 520, § 99, as amended 1861, chap. 311.) The provisions of this act apply to every public highway and private road laid out and dedicated to the use of the public within the last six years, and to every such highway hereafter to be laid out. (Laws 1861, chap. 311, § 2.) The limitation of the second section prevents the application of that law to a case where a road has been a public highway by user up to 1844, when it was shut up for a period of over six years, when it was again opened, and has since been used by the public down to the time of the trial in 1865. {Amsbei/ v. Hinds, 48 N. Y. B. 57.) The commissioners have six years in which to cause the roads they have laid out to be opened and worked, but if it be not done within that period, their order laying out the road has no legal effect. The road must be both opened and worked. It is not necessary that every part of it should be worked. The statute does not prescribe how well or how much it shall be worked. {Marble v. Whitney, 28 N. Y. R. 297 ; WalJcer v. Gay- wood, 31 iV. Y. JR. 51 ; BecTcwith v. Whalen, 65 N. Y. It. 322.) Where after the making of an order by the commissioners of highways in 1839, for laying out a road, the road was that year opened in fact, and dur- ing 1839 and succeeding years, was opened and par- tially worked throughout the routes, and was traveled by the public more or less every year from the time of its being laid out, opened and worked, it was held that this was an opening and working of the road within 248 THE LAW OF HIGHWAYS. six years, as contemplated by the statute. {Marble v. Whitney, supra.) The statute applies only to those cases where there has been a failure to open and work the road at all, and not where the highway has been in full use for the whole time, though not in all places open to its full width. The failure, by the commissioners, to cause a highway, long in use, to be opened to its full statute width for a period of thirty years, does not operate to extinguish the rights of the public to the parcel not so opened and worked. {Walker v. Caywood, supra.) If the road has been properly laid out and recorded, though not opened to its full width for over six years, the commissioner may proceed to so open it, and may remove the fences thereon — and the fact that the road has been used at a less width than laid out for over twenty years, wUl not prevent a removal of the fences. {Id.) 13. What Koads ake Public Highways. AU public highways now in use heretofore laid out, and allowed by any law of this State, of which a record shall have been made in the office of the clerk of the county or town, and all roads not recorded which have been or shall have been used as public highways for twenty years or more, shall be deemed public highways, but may be altered in conformity to the provisions of this title. (1 R. S. 521, § 100.) This but enacts what the common law has already declared, that roads which have been used as public highways for twenty years, though not recorded, shall be deemed public highways. {People v. Judges of Courfland, 24 Wend. 491 ; see ante p. 53, et seq.) It is the duty of the commissioners to cause such roads LAYING OUT HIGHWAYS. 249 to be ascertained, described and entered of record in the town clerk' s office. (See farther on the subject, ante p. 80.) A way which has been neither laid out and entered of record as required by law, nor used as a public high- way for twenty years, is not a highway. A village constitutes a separate highway district, and the trustees have power of highway commissioners. (Laws 1871, chap. 870.) 14. When Tttknpike Koads become Highways. Whenever any turnpike corporation shall become dissolved or the road discontinued, its road shall be- come a public highway, and be subject to all the legal provisions regulating highways. (Laws 1838, chap, 262, § 1.) But whenever any plank road company shall, for any reason fail to have its corporate existence extended, such portion of the line of said road as was built over lands which were originally purchased by said com- pany for that purpose and was not previously a public highway, shall not be taken possession or control of by the town in which the same may lie or be claimed or worked as a public highway, until the said town shall pay over to said company the principal sum of the amounts paid by said company for the same, as shown by the deeds of conveyance therefor, given to said com- pany therefor. (Laws 1880, chap. 484, § 2.) 15. Special Commissionees to Lay out Eoads. It was provided by an act to enlarge the powers of boards of supervisors (Laws 1838, chap. 314, § 1, sub. ,^,4), that the supervisors of each county have power, at 250 THE LAW OF HIGHWAYS. their annual meeting, or when lawfully convened at any other meeting, to appoint special commissioners to lay out public highways in those cases where they shaU be satisiied that the road applied for is important, and that the authority now conferred by law upon commissioners of highways cannot or will not be exer- cised to accomplish the laying out of such road. But such power shall not be exercised by any board of supervisors unless the applicant therefor shall prove to such board of supervisors the service of a notice, in writing, on a commissioner of highways of each town through and into which any such highway is intended to be laid, at least six days previous to presenting such application, specifying therein the object thereof, and names of persons proposed to be appointed such com- missioners. (Laws 1848, chap. 164. / The supervisors shall have power to provide for the payment of the special commissioners appointed under the above provision, for their time and expenses. The decisions made by said commissioners may be appealed from and reviewed in the same manner, and with the like authority, as is allowed by law in the oases of roads laid out by the commissioners of high- ways of any town. Special commissioners have an authority to do all the several acts and duties connected with their posi- tion. {Odellv. De Witt, 53 if. Y. B. 643.) The roads so to be laid out by such special commis- sioners, or the same as settled on appeal, shall be recorded, opened and worked as public highways of the towns in which they are respectively situated, in the same manner as other highways of the town are now required by law to be recorded, opened and worked. (Laws 1838, chap. 314, § 4.) ^ In any case where, by any act or acts of the Legisla-I^ LAYING OUT HIGHWAYS. 251 ture of the State, any non-resident highway taxes have been specially set apart or appropriated for the con- struction or maintenance of any roads or bridges, and any commissioner or commissioners appointed therefor, and where, by reason of the expiration of the official life of the commissioner or commissioners so appointed to receive, expend, and account for said non-resident highway taxes, any balance or remainder so set apart or appropriated has not been received or expended, it shall be lawful for the boards of supervisors of the counties wherein said non-resident lands are situated to appoint a commissioner or commissioners to receive and expend any such unexpended balance, under the same regulations and conditions for the faithful per- formance of his or their duties, as were provided for in said original act or acts ; and any act or acts of any board of supervisors Appointing such commissioner or commissioners, in anticipation of the passage of this act, are hereby ratified and confirmed. (Laws of 1879, chap. 275.) 16. Papers, When and Wheke Filed. All applications, certificates, and other papers relat- ing to the laying out, altering or discontinuing of any road shall be filed by the commissioners of highways, as soon as they shall have decided thereon, in the office of the town clerk of the town. (1 R. S. 518, §83; see ante, p. 243.) For the law relating to appeals from the determina- tion of the commissioners laying out or refusing to lay out a road, and for that relating to the assessment of damages for laying out a road, see hereafter. The clerk cannot refuse to file papers, if the com- missioners were duly elected and in the actual exercise of the office. {People v. Collins, 7 John. 549.) 252 THE LAW OF HIGHWAYS. When tlie commissioners of highways have made and filed an order laying out a highway, surli order is conclusive evidence of the laying out and boundaries of the road. If any substantial error has been com- mitted, it must h6 corrected on appeal or certiorari. ALTERING AND DISCONTINUING HIGHWATS. 253 CHAPTER IX. ALTERING AND DISCONTINTJING HIGHWATS. 1. Altering highways. 2. Disconttnulng highway. 8. Discontinuance hy non-user. i. Description of road abandoned. S. Effect of discontinuance. 1. Altering Highways. As we have already seen, the commissioners of high- way have power, and it is their duty, to alter such highways as they, or a majority of them, shall deem inconvenient. {Ante p. 79.) This power to alter is given for the purpose of making the road better by changing its site, and should only be exercised when the road is deemed inconvenient. They may restore the boundaries and fences of a highway to its original lines ; and if it passes by or through an inconvenient place, they may change its location ; but if, in so doing, it becomes necessary to take more or other lands of the adjoining proprietor, compensation therefor must be made the same as on the original location. (See Peo- ple V. Judges of Courtland, 24 Wend. 493.) They are empowered to widen a highway. This is an alteration not "laying out" of a new highway. {People v. McNeil, 2 N. T. Sup. 140 ; see form of order. Appen- dix No. 44.) Application. — The commissioners may alter a road without any application {Oould v. Glass, 19 Barl). 179), 254 THE LAW OF HIGHWAYS. or upon the application of any person living in the town, liable to be assessed for highway labor (1 Ji. S. 513, § 54), or upon the application of any person liable to be assessed for highway labor, and owning lands in a town in which he is not a resident. (Laws 1836, chap. 122 ; People v. Eggleston, 13 How. 123.) Where application is made it must be in writing, addressed to the commissioners, and signed by the person apply- ing. {Id. ; see form No. 43.) Jury necessary. — The commissioners have no power to alter a public highway without the intervention of a jury, except where the same is altered with the consent in writing of the owners of land through which the alteration is to be made. It was held in Garretson v. Clark, Labor , 162, that they had such power, but the amendment to section 60, article 4, title 1, chapter 16, part 1, of the Revised Statutes, by Laws of 1877, chap. 465, expressly includes all cases of the alteration of any road, &c. Survey. —Whenever the commissioners shall alter any road, either upon application or otherwise, they shall cause a survey to be made of such road, and shall incorporate such survey in aii order to be signed by them, and to be filed and recorded in the office of the town clerk, who shall note the time of recording the same. (1 R. S. 613, § 55.) As to the manner in which the survey is to be made, see ante, Chapter VIII. Order to he posted. — It is the duty of the town clerk whenever any order of the commissioners for altering a road shall be received by him, to post a copy of such order on the door of the house, where the town meeting is usually held ; and the time hereafter limited for ALTERING AND DISCONTINUING HIGHWAYS. 255 appealing from such order, shall be computed from the time of recording the same. (1 H. S. 513, § 56.) When two commissioners map act. — Any two com- missioners may make the order altering a highway, provided it shall appear in the order filed by them, that all the commissioners of highways of the town met and deliberated on the subject embraced in such order, or were duly notified to attend a meeting of the com- missioners for the purpose or deliberating thereon. (1 R. 8. 525, § 125.) The order must be sufficient on its face. Its defects cannot cannot be helped out or supplied by parol. {People V. Hynds, 30 N. T. R. 473.) Where the third commissioner does not participate in the proceeding, the order must show that he was duly notified to at- tend for the purpose of deliberating on the subject embraced in the order. A simple allegation that he Jias been duly notified to attend is insufficient. {Fitch V. Commissioners of KirMand, 22 Wend. 182.) If the order is signed by only two of the commissioners, and does not recite the fact that the third participated in the proceedings, nor that he was notified to do so, it is void. {People v. Hynds, supra; see also ante, p. 106.') Disagreement respecting certain roads. — When the commissioners of highways of any town shall disagree vpith the commissioners of any other town in the same county, relating to the alteration of an old road ex- tending into both towns ; or when the commissioners of a town in one county, shall disagree with the com- missioners of a town in another county, relative to altering an old road which shall extend into both coun- ties, the commissioners of both towns shall meet to- gether at the request of either disagreeing commission- 356 THE LAW OF HIGHWAYS. ers, and make their determination upon such subject of disagreement. (1 R. S. 516, § 72.) Papers where filed. — All applications, certificates and other papers relating to altering any road, shall be iiled by the commissioners of highways, as soon as they shall have decided thereon, in the office of the town clerk of the town. (1 B. S. 518, § 83.) Damages and appeals. — Damages arising from the alteration of a road, are to be assessed in the same manner as in laying out a road. Appeals from the order of the commissioners altering, or refusing to alter a road, are also to be taken in the same manner as in case of laying out a road. For the law and prac- tice on those subjects, see the succeeding chapters. 2. Discontinuing Highway. The commissioners of highways have power to dis- continue such old roads and highways as shall appear to them, on the oaths of twelve freeholders of the same town, to have become unnecessary. (1 R. S. 502, § 2.) The supervisors of a county are authorized to pro- vide for the use and improvement of abandoned turn- pike, plank or macademized roads within any town as public highways ; and to provide for an alteration, reduction or change in the rate of toll charged by such roads. (Laws of 1869, chap. 855.) But where a new road has been regularly laid out, it cannot be discontinued as an old one, before it has been opened and used, and where there has been no change, of circumstances, removing the occasion for it, and rendering it unnecessary. {People v. Griswold, 67 JV. T. R. 59.) ALTERING AND DISCONTINUING HIGHWAYS. 257 Application.^-Th.eY may .proceed to discontinue a road of their own motion, anpL without any application therefor. {Oould v. Olass, 19 Barh. 179 ; Marhle v. Whitney, 28 N. T. R. 297.) ,, Or they may proceed on the application of any person living in the town, liable to be assessed for highway labor (1 ^. 8. 513, §54); or of any person liable to be assessed for highway labor and owning lands in the town, although, he be a resident of another town. (Laws 1836, chap. 122.) Every such application shall be in writing, addressed to the commissioners and signed by the person apply- ing. {Id.) The application to lay out a new road, and to dis- continue an old one, may be in one form. {People v. Robertson, 11 How. 74; see form No. 53.) Two commissioners may act. — Any two commission- ers of the town may make the order discontinuing an old road, provided it appear in the order filed by them that all the commissioners of highways of the town met and deliberated on the subject embraced in the order, or were duly notified to attend a meeting of the commissioners for the purpose of deliberating thereon. (1 R. S. 525, § 125.) The order must be sufficient on its face. Its defects cannot be helped out or supplied by parol. If it is signed by only two, and does not show that all were present and participated in the pro- ceedings, or were notified to attend a meeting of the commissioners for the purpose of deliberating on the subject of the order, the order will be, void. {People V. JBynds, 30 iV. T. R. 470 ; Fitch v. Commissioners of KirJcland, 22 Wend. 135. See further hereon ante Chap. VIII.) Notice of discontinuance. — Upon application being 18 258 THE LAW OF HIGHWAYS. made aqcording to law to the commissioners of high- ways of any town, for the discontinuance of any pub- lic highway therein, it shall be the duty of such com- missioners to give to all owners and occupants, resid- ing upon lands through or along which the highway described in said application passes, six days notice in writing of the time and place of the meeting of the jury of freeholders to certify to the usefulness of said highway, which notice shall contain the name of the applicant, and a brief description of the highway de- scribed in the application. And in case such jury shall certify that said highway is useless and unnec- essary, then it shall be the duty of such commissioners to give to such owners and occupants six days' notice in writing of the time and place of the meeting of such commissioners to hear and determine such application. The notices required by this act shall be served by de- livering the same to such owner or occupant, or, if he be absent, by leaving them at his dwelling-house, and in either case, at least six days before the time of meeting of which notice is given. (Laws 1878, chap. 114 ; see forms No. 54 and 55.) To summon jury. — Whenever application shall be made for the discontinuance of an old road, on the ground that it has become usfeless and unnecessary, the commissioners of highways to whom such appli- cation shall be made, shall summon twelve disin- terested freeholders of the town to meet on a day cer- tain to consider such application. Such freeholders, when met, shall be sworn well and truly to examine and certify in regard to the propriety of such discon- tinuance. (1 R. S. 517, § 81.) The statute does not require the commissioners to issue or to have any process — it only requires them to ALTERING AND DISCONTINtTING HIGHWAYS. 259 summon the freeholders. The fact that the freeholders have assembled under void process does not disqualify them for acting when they were afterwards legally re- quested so to do. (See People v. QommAssioners of Oreenbush, 24 Wend. 367.) It seems that the commis- sioners must themselves summon the jury, instead of calling in the aid of some officer who usually performs such services. {Id.) Twelve freeholders. — The statute by freeholders means such persons as have the legal title to real estate — such as are freeholders without a proceeding in court to make or declare them so ; a legal title to lands is requisite. {People v. Hynds, 30 N. T. R. 472.) The commissioners have no authority to act until twelve freeholders certify that the road is useless and unnecessary. If there are not that number of quali- fied freeholders, all subsequent proceedings will be void. {Id. Town of Gallatin v. LoucJcs, 21 Barh. 578.) A recital in the order discontinuing a road, that twelve freeholders have certified that it is useless and unnecessary, is not conclusive evidence of the fact. That is a jurisdictional fact and is open to contradiction. (See People v. ComTnissioners of Seward, 27 Barb. 94 f see further as to the qualification, etc., of the free- holders, ante Chap. YIII, sub. 6.) Jury to he sworn. — The jury are to be sworn well and truly to examine and certify in regard to the pro- /priety of such discontinuance. Such oath may be ad- ministered by one of the commisssioners: (Laws 1845, chap. 180.) Proceeding of jury. — They shall then proceed to •view such road, and if they shall be of opinion that the 260 THE Law of highways. same is useless and unnecessary, 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. (1 R. S. 518, § 82 ; see form No. 55.) The commissioners have no power in any case to discontinue a road without the oath of the freeholders. After the freeholders have made the certificate, the commissioners may grant or refuse the application. An appeal may be had from their decision. A certifi- cate is not necessary where the owner consents thereto, and files with the town clerk a release of damages. {People -v. Jones, 63 N. T. B. 306.) Jury not to he paid. — !N"o compensation shall be allowed any juror for examining and certifying in regard to the propriety of any highway being discon- tinued, nor for appearing to make such examination. (Laws 1845, chap. 180, § 14.) Survey. — Whenever the commissioners of highways shall discontinue any road, either upon application to them or otherwise, they shall cause a survey to be made of such road and shall incorporate such survey in an order to be signed by them, and to be filed and recorded in the office of the town clerk, who shall note the time of recording the same. (1 B. S. 513, § 55.) In recording such survey and order, the town clerk acts ministerially, and cannot refuse to do it on the ground of some defect in the order, nor on the ground that the commissioners have neglected to take the oath of office and file the certificate of such oath. {People V. Collins, 7 John. 549.) The clerk may be compelled by mandamus to record the order. The survey is to be made in the same manner as in lay- ALTEEING AND DISOONTINXJING HIGHWAYS. 261 ing out highways, as to which, see ante Chap. VIII. Order to te posted. — It is the duty of the town clerk whenever an order discontinuing a road shall be re-r ceived by him, to post a copy of such order on the door of the house where the town meeting is usually held ; and the time limited for appealing from any such order, shall be computed from the time of records ing the same. (1 R. S. 513, § 56.) What roads may he discontinued. — The power of commissioners to discontinue roads, is limited to roads which have, since they were laid out, become, or proved upon trial to be useless and unnecessary. It does not enable them, or a jury of freeholders called by them, to reverse decisions laying out roads, espe- cially where such decisions have been affirmed on ap- peal. {People V. Pike, 18 How. 70.) So a formal dis- continuance of a road as a highway, which was never in fact a public highway, is a nullity. {Miller v. Oar- lock, 8 Barh. 153.) Any portion of a road may be discontinued without affecting the residue. {People v. NicTiols, 51 N. Y. R. 470.) A decision of the referees refusing to' lay out, alter or discontinue, does not bar another application for the same thing made within four years. {People v. Jones, 63 N. Y. R. 306.) Papers when and where filed. — All applications, cer- tificates and other papers relating to the discontinuing of any road, shall be filed by the commissioners as soon as they shall have decided thereon, in the office of the town clerk of the town. . (1 R. 8. 518, § 83.) 262 the law of hiohwats. 3. Discontinuance bt Non-usee. It is provided, among other things, by chapter 311 of the Laws of 1861, amending section 99 of the High- way Law, that any highway laid out and dedicated to the use of the public, that shall not have been opened or worked as a highway within six years from the time of being so laid out, shall cease to be a road for any purpose. By the second section of the same act, it is provided that the provisions of this act shall apply to every public highway laid out and dedicated to the use of the public, within the last six years, and to every such highway hereafter to be laid out. The limitation of the second section prevents the applica- tion of that law to a case where a road has been a public highway by user up to 1844, when it was shut up for a period of six years, when it was again opened and had since been used by tlie public down to the time of trial in 1865. {Amshey v. Hinds, 46 Bwrh. 623.) Independent of the above provision, the Revised Statutes established no rule or law for the discontinu- ance by non-user of a highway once established. The only means by which such discontinuance could be affected are by non-user for a period of twenty years, or by such an entire and absolute abandonment as could leave, under the circumstances, no question of intent. (/A per Boaedman, J.) An abandonment can only be predicted upon the acts of those entitled to the easement. The public alone can work an aban- donment by obstruction. One individual cannot do it ; least of all the person from whom the easement is due. {Id.; Corning \. Oould, 16 Wend. 531.) A highway is subject to discontinuance, though never opened, and such discontinuance is effectual as ALTERING AND DISCONTINUING HIGHWAYS. 263 against an alternative writ of mandamus requiring the opening of the road, although occurring after the ser- vice of the alternative writ. {People v. Commissioners of Reading, 1 N. T. Sup. 193 ; People v. Oriswold, 2 id. mi.) 4. Description of Road Abandoned. Whenever any public highway or any part thereof, by reason of alterations made therein, or by the opening of a new road, or in any other way, shall be abandoned by the public, and is no longer used as a public road, the commissioners or commissioner of highways, shall file in the town clerk' s office of the town, a description in writing signed by them or him, of the road so aban- doned, and the same shall thereupon be discontinued. (Laws of 1853, chap. 174, § 15 ; see form No. 57.) In respect to a public highway, the public, alone, can work an abandonment by acts of obstruction ; one individual cannot do it ; least of all the person from whom the easement is due. {Arnshey v. Hinds, 46 Barb. 622.) 5. Effect or Discontinuance. Whenever a highway is discontinued or abandoned, the entire and exclusive enjoyment of the land over which it was located, reverts to the owner of the soU. {Jackson v. Hathaway, 15 John. 453.) So on the discontinuance of an old road in the city of New York, the fee is not in the corporation, but presump- tively in the owners of the adjoining lands. {Yan Amringe v. Barnett, 8 Bosw. 357.) But where the adjoining land is owned by one per- son and the fee of the highway by another, on discon- tinuing the highway, the soil does not pass to the ad- 264 THE LAW OP HIGHWAYS. Jacent owner but reverts to the owner of the fee. As where the owner of lands adjoining a highway sells them, and bounds the grants on the sides of the high- way, or by .other equivalent expressions, the fee of the highway does not pass, and on its discontinuance, the soil reverts to the grantor. (Jackson v. Hathaway, supra.) When any person shall be the owner of any land over which any highway shall run, and such highway shall be discontinued in whole or in part, by reason of some other road to be established and laid out through the lands of the same person, the person who shall assess the 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 openiiig and laying such new road ; and thereupon the owner of the land may inclose so much of the high- way so discontinued as shall belong to him. (1 H. 8. 516, §71.) Such deduction can be made only when such high- way shall be discontinued in whole or in part, by rea- son of some other road to he established and laid out through the lands of the same person. Where an old road, the fee of which is in one person, is discontinued, and a road laid out over the land of another person, which land is contiguous to the old road, the proprie- tor of the land is not entitled to the old road, as a compensation for the land taken for the new road. {Jackson v. Hathaway, supra; Amringe v. Barnett, 8 Bosw. 357.) The effect of discontinuing a road district which has been formed from parts of two other districts is to re- store the latter to their original bounds. {People v. Sly, 4 Hill, 593.) ALTEBING AND DISCONTUiTtriNa HIGHWAYS. 265 Where an adjacent owner makes substantial im- provements npon a portion of the street abandoned by act of the city, the latter is not estopped from set- ting up a claim thereto, and such encroachment, though for twenty years, could not destroy the public right. {Si. Vincent Orphan Asylum v. City of Troy, 76 N. Y. R. 108.) 266 THE LAW OF HIGHWAYS. CHAPTER X. ASSESSMENT OF DAMAGES ON LAYING OUT BOAD. 1. Compensation to be made. 2. B7 agreement. 3. Damages, how to be assessed. 4. Provision in case persons conceive themselves aggrieved. 6. Costs of assessments, and b^ whom paid. 6. Damages assessed to be audited by supervisors. 7. Damages and expenses, howcollected. 8. Certiorari of proceedings. 1. Compensation to be Made. Although the Legislature of the State, by virtue of the right of eminent domain, may take private prop- erty for public use — as for a highway — yet it must pro- vide for making compensation for the property so taken. A provision for compensation is a necessary attendant on the due and constitutional exercise of the power of the law given to deprive an individual of his property vdthout his consent. (2 Kent, 339.) The Con- stitution of this State, as weU as those of most of the other States, provides that private property shall not be taken for public use without just compensation. When compensation to he made. — Although com- pensation must be made for the land taken, it appears not to be essential that such compensation, or offer of it, precede or be concurrent with the taking of the property. The statute provides that the damages shaU be assessed before the road shall be opened, or worked or used. (1 R. 8. 515, § 64.) But there is no ALTEEING ANB DISCOKTIISririNG HIGHWAYS. 267 provision that such damages shall he paid before such opening and use. The appraisal of damages is a con- dition precedent to the opening of the road, but the payment of such damages is not. It ha^ never been deemed necessary that the compensation which the Constitution requires to be made for private property taken for public use, should be acfeaZ^?/paid before entering upon or taken possession of the property. {Bloodgood v. Mohawk and Hudson R. R. Co., 14 Wend. 51, and cases cited; S. C, 18 id., 9 ; Smith v. Jlelmer, 7 Bari. 416 ; 54 ]Y. T. R. 132.) 2. By Ageeement. The damages sustained by reason of the laying out and opening such road, may be ascertained by the agreement of the owner and commissioners of high- ways, provided such damages do not exceed one hun- dred 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 oflBce, and shall for- ever preclude such owner from all further claim for such damages. (1 R. 8. 515, § 64.) The word " owner" here includes a vendor under an executory contract of sale, (^mith v. Ferris, 6 Hun, 553.) If the owner of improved land, does not within the time prescribed, elect the mode in which he would have the damages assessed he loses the right, and they may be assessed in the ordinary way. {Johnston v. Supervisors of HerTcimer^ 19 Johns. 272.) The agreement should be in writing, as it is required to be filed. The release must be in writing. No one 268 THE LAW OF HIGHWAYS. but the owner of the land is entitled to damages. The occupant or tenant has no clami. If he is disturbed in ids possession, he must look to his landlord for redressj This is, however, otherwise in the city of New York. There the damages of each person interested in the premises, as landlord and tenant, mortgagor and mort- gagee, are to be estimated separately. {Ooutant v. Catlin, 2 Sand. CTi. 485 ; see forms Nos. 58, 59.) 3. Damages, How to be Assessed, Whenever any damages are now allowed to be assessed by law, when any road or highway shall be laid out, altered or discontinued, in whole or in , part, such damages shall be assessed by not less than three commissioners, to be appointed by the county court of the county in which such road shall be, on the application of the commissioner or commissioners of highways of the town ; or in case the said commis- sioners of highways should neglect or refuse to make such application for the space of thirty days after hav- ing been requested so to do, it shall be lawful for the said county court to appoint such commissioners on the application of any of the owners of the land through which such road shall have been laid out ; and the commissioners so appointed shaU take the oath of office prescribed by the Constitution, and shaU proceed, on receiving at' least six days' notice of the time and place, to meet the commissioners of highways and take a view of the premises, hear the parties and such witnesses as may be offered before them ; and they shall all meet and act, and shall assess all dam- ages which may be required to be assessed for the said highway, and shall be authorized to administer oaths to witnesses which may be produced before them under ALTEBINa AND DISCONTINUING HIGHWAYS. 269 this section ; and wlien they shall all have met and acted, the assessment agreed to by a majority of them shall be valid ; and when snch assessment shall be so made it shall be delivered to one of the commissioners of highways of the town, who, within ten days after receiving the same^ shall file it in the town clerk's office in said town, (Laws 1845, chap. 180, § 5, as amended by chap. 315, of Laws 1872.) Applicaiipn. — If the owner of land taken for a highway has a right to damages, it is the dnty of the commissioners of highways to apply to the county court for the appointment of comniissioners to assess such damages. If they refuse to discharge that duty, they naay be compelled to perform it by mandamus. {Qhapmanv. Gates, 46 Barb. 319.) The application is to be mad^ to the court and not to the judge. ITotice of the application should be given to the land-owner interested. The commission- ers appointed should be disinterested persons, not of kin to the owner of the land. (See form of applica- tion and order. Appendix Nos. 60, 62.) Notice of meeting. — Notice of the meeting of the commissioners, for the purpose of making the assess- ment, should also be given to the land owners in time for them to procure witnesses, etc. (See form No. 61.) OommissiQuers to be sworn. — The commissioners must be sworn before proceeding to make the assess- ment. Taking the requisite oath is an act necessary to give them jurisdiction. The parties to the proceed- ing have no right to waive such an irregularity as an omission of the oath, since the whole town has an interest in the proceeding.' (See People v. Connor, 46 Barb. 833 ; for form of oath, see Appendix No. 1.) 270 THE LAW OF HIGHWAYS. Proceedings on assessment. — The first thing that the commissioners are required to do, after taking the oath of office, is to view the premises. They are then to hear the parties and such witnesses as may be offered before them. It is said that they may take the opinion of others in whose integrity and judgment they have confidence, without swearing them, as witnesses. They may converse with all classes of men concerning the business in hand, and collect information in all ways which a prudent man usually takes to satisfy his own mind concerning matters of the like kind, where his own interests are involved in the inquiry. The com- missioners must exercise their own judgment at the last, but they may first seek light from other minds the better to enable themselves to arrive at just conclu- sions. Estimates from mechanics and builders may become important in the discharge of the duties of the commissioners, and in these and other cases they may require the sanction of an oath to the estimates which they receive. If, in any case, they make the opinions of others the basis of action, without exercising their own judgment, those opinions should be given upon oath. But when they only seek information for the purpose of enlightening their own judgments, they may obtain it in any way in which men usually acquire knowledge. (In the matter of William and Anthony Streets, 19 Wend. 695, per Beonson, J.) What damages to be allowed. — The value of the land taken is not restricted to its agricultural or productive qualities, but inquiry should be made as to all other legitimate purposes to which the property could be appropriated ; and just compensation cannot be less than the damage which the owner of the property taken has sustained. {Matter of Hamilton Avenue, 14 Barh. ALTERING AND DISCONTINtriNG HIGHWAYS. 271 415.) In making appraisals of this kind, the true rule, the only rule which will do equal justice to all parties, is to determine what will be the effect of the proposed change upon the market value of the property. The proper inquiry is, what is it now fairly worth in the market, and what will it be worth after the improve- ment is made 1 The question is not what estimate does the owner put upon it, but what is its real worth in the judgment of honest, competent and disinterested men? {Matter of Furman Street, 17 Wend. 649, per Bbonson, J. ; see also Troy and Boston H. JR. Co. v. Lee, 13 Bart). 169.) As to how the value of a leasehold is to be estimated, see Matter of Central ParJc, 54 How. Pr. 313. To whom allowed. — There ought to be separate as- sessments of the damages to lessor and lessee ; but if a gross sum be awarded to the landlord, the tenant is entitled to recover his proportion thereof in equity. {Coutant V. GatUn, 2 Sandf. Ch. 485 ; Turner v. Wil- liams, 10 Wend. 139.) Where there are conflicting claims of title the dam- ages should be awarded to "owners unknown." {Elev- enth Ave. 49 How. Pr. 208.) Such an award when confirmed by the Supreme Court is conclusive ; there can be no subsequent question raised, except as to who are such owners, the quantum of their interest is im- material, {Ex parte Department of Parks, 73 N. Y. JR. 560.) Contingent JDa/mages. — The commissioners cannot take into consideration any remote, contingent or spec- ulative damages, yet they are not confined in making their appraisal to the actual value of the land to be taken, but may consider how the laying out and open- 272 THE LAW OF HIGHWAYS. ing of the road will affect the residue of the owner's land. Will it leave that residue in an inconvenient and unmarketable shape ? If so, that fact may properly be taken into account in determining the compensation. (See Albany Northern R. R. Co. v. Lansing, 16 Barb. 68.) Although the language of the above section is broad enough to include consequential damages, they can only be allowed where some portion of the applicant's land has been taken for the highway. {People v. Su- pervisors of Oneida, \Q Wend. 102.) An action will not lie to restrain the erection, for public purposes, by a city corporation, of a bridge within the limits of the city, upon one of the streets thereof, at the suit of a land owner whose property is not taken or touched, and in such a case the owner is not entitled to compensation for indirect or consequen- tial damages. {Swett v. City of Troy, 62 Barb. 630.) Except where a highway is laid out along the line of a farm, taking no portion of the land of the owner, but subjecting him to the expense of maintaining the whole of the fence, the expense of half of which was formerly borne by him, such owner or person occupy- ing such land shall be paid for building and maintain- ing such additional fence as he may be required to build or maintain, by reason of the laying out and opening such road. Such damages shall be ascertained and determined in the same manner that other dam- ages are now ascertained and determined in laying out highways. (Laws 1853, chap. 174, § 16.) Deductions for old road. — Where any person shall be the owner of any land over which any highway shall run, and such highway shall be discontinued in whole or in part, by reason of some other road to be estab- ALTERING AND DISCONTINUING HIGHWAYS. 273 lished and Jaid out through the lands of the same per- son, the persons who shall assess the damages shall take into calculation the value of the road so discon- tinued and the benefit resulting to such person by- reason of such discontinuance, and shall deduct the same from the damages assessed for the opening and laying out of such new road ; and, thereupon, the owner of the land may enclose so much of the highway so discontinued as shall belong to him. (1 H. S. 516, § 71.). The deduction, as above provided, is only to be made when the old road is discontinued by reason of some otlier road to be laid out through the lands of the same person. Where the premises over which the highway is laid out have been already laid out or dedicated to the public as a highway, the owner is not entitled to dam- ages, notwithstanding that he is in possession of the premises, claiming adversely at the time the proceed- ings are commenced to open the road. {Baldwin v. The City of Buffalo, 35 iV. T. B. 375.) Description of route. — In the assessment any de- scription which designates the route of the road and shows that the assessment was for damages thereon, is sufficient ; and in an action for the damages, after their collection by the officers, parol evidence to show that the route on which the assessment was made differed from that laid out by the appellate tribunal, is inad- missible. {Hallockv. Woolsey, 23 Wend. S28.) Vested rights. — When the damages have been finally assessed, the owner's right to them is vested, and can- not be divested by statute, or by a discontinuance of the highway. When a highway is laid out the public 19 274 THE LAW OF HIGH\yATS. acquire nothing more than an easement, and there is always a contingency by which the owner may return into full possession on its being no longer required by the public. When this contingent event will happen is ordinarily unknown, and is wholly immaterial as regards the rights of the landholder. Whether the- public retains the use of the land for a century, or for a year, or but for a single day, cannot affect his title to compensation. That becomes fixed and vested the instant his property is taken for public use. {People V. Supervisors of Westchester, 4 Barb. 64.) Repayment. — But where the proceedings for laying out the road were void from the beginning, the land owner to whom the damage assessed has been paid has. no legal right to retain it, and those tax-payers from whom the money has been collected are entitled to have it restored to them. The town, however, in its corporate capacity, has no connection with the transac- tion, and cannot maintain an action to recover back such money. {Town of Gallatin v. Loucks, 21 Barb, 578. ) In this case one of the twelve freeholders sworn to examine and certify as to the necessity of the road having omitted to sign the certificate, neither the com- missioners of highways, nor the county court, nor the referees. who laid out the road acquired any jurisdic- tion in the case. The court held that the assessment of damages was unauthorized, and the tax levied upon the inhabitants of the town for the payment of those damages, was illegal ; that those from whom the money had been collected were entitled to have it restored to them ; and that the defendant, the land owner, had no legal right to retain it. It was further held that the town, in its corporate capacity, had no ALTERING AND DISCONTINUING HIGHWAYS. 275 connection with the transaction, and could not main- tain the action to recover back the money. Award. — The commissioners are to make their award of damages in writing, and are to deliver it to the commissioners of highways, who within ten days after receiving it, are to file it in the town clerk's office. (See form of award. Appendix No. 63.) Through uninclosed lands. — Where a highway shall hereafter be laid out through uninclosed, unimproved and uncultivated lands, the damages shall be assessed in the same manner as if the same were laid out through inclosed, improved and cultivated lands. (Laws 1857, chap. 491, as amended 1858, chap. 51.) Vacancies, how filled. — If, for any cause, any com- missioner or referee appointed under the above provi- sion shall be pTevented from serving, or shall refuse to serve, the court or officer who appointed him shall have power to appoint another to supply his place. (Laws 1847, chap. 455, § 20.) Orders to be filed. — All orders for the appointment of commissioners or referees, under the above provi- sions, shall be filed and recorded in the office of the town clerk of the town in which the road -shall be located. {Id. §21.) Costs. — In all cases of the assessment of damages under the above provision, by the commissioners ap- pointed by a county court, the costs thereof shall be paid by the town in which the damages shall be as- sessed (Laws 1847, chap. 455, § 7), and are to be audited by the board of supervisors, levied and collected in the 276 THE LAW OF HIGHWAYS. same manner as the damages assessed. (See Id. § 23.) 4. Provision in Case Persons Con'ceive Them- selves Aggrieved. Any person conceiving himself aggrieved, or the commissioner or commissioners on the part of the town feeling dissatisfied with any such assessment, may, within twenty days after the filing thereof, as afore- said, signify the same by notice in writing, and serving the same on the town clerk, and on the opposite party, that is, the persons for whom the assessments were made or the commissioner or commissioners of high- ways as the case may be, asking for a jury to re-assess the damages, and specifying a time not less than ten nor more twenty days from the time of filing said assessment, when such jury will be drawn at the clerk' s office of an adjoining town to the same county, by the town clerk thereof, which notice shall be served upon said opposite party within three days after service upon the town clerk as aforesaid, and may be served per- sonally, 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 fix- ing the same upon the outer door of said dwelling- house. (Laws 1847, chap. 455, § 3 ; for form herein, see Appendix No. 67.) . Wherever there are more than one commissioner of highways in a town, notice of appeal from an assess- ment of damages must be served on each and all of them. {People v. Lawrence, 54 Barb. 689.) The assessment of the commissioners is not annulled or invalidatedfby applying for a re-assessment. Nor is such assessment affected where the proceedings to re-assess are discontinued or the jury fail to agree. ALTERING AND DISCONTINUING HIGHWAYS. 277 ' The award of the commissioners is in effect a judgment in favor of the owners of the land against the town ; it is final and conclusive until reversed or vacated or a new judgment is rendered by the jury by whom the re-assessment is made. {People v. Lewis, 26 How. 378 ) Where no proceedings were taken for eleven months to call out a new jury, after the first failed to agree, it was held that the party applying for such re-assess^ ment had abandoned the proceeding. (Id.) Where two or more apply. — Where application shall be made by two or more persons for the re-assessment of damages by a jury, such jury shall be obtained in conformity with the terms of the notice first served upon the clerk of the town in which the damages are to be assessed. (Laws 1847, chap. 455, § 7.) The above provision for re-assessing damages is de- cided not to be in conflict with the constitution. {GlarTc v. Miller, 42 Barl. 255.) Proceedings. — -Any person conceiving himself ag- grieved may have such re assessment whether he is in facts aggrieved or not. The notice and demand of a jury must be served on the town clerk within twenty days after the filing of the assessment of the commis- sioners. But the time of serving such notice is really less than twenty days, since such notice is to specify a time not less than ten nor more than twenty days from the time of filing the assessment, for the drawing of the jury. The notice is to be served on the opposite party within three days after the service on the town clerk. The party asking such re-assessment should also give immediate notice to the town clerk of the town in which the jury is to be drawn, specifying the time. He must have at least three days' previous 378 THE LAW OF HIGHWAYS. notice of such drawing. (See forms Nos. 64, 65.) Jury, how drawn. — At the time and place mentioned in the preceding section, the town clerk of such adjoin- ing 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 oflSce of those selected and returned as jurors, pursu- ant to article second, title four, chapter seventh, part third of the Revised Statutes, who are not interested in the lands through which such road shall be located, nor of kin to either or any of the parties, and shall draw therefrom the names of twelve 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. (Laws 1847, chap. 455, § 4 ; see form No. 66.) Jury, when to he summoned. — The party receiving . such certificate shall, within twenty-four hours there- after, deliver the same to a justice of the peace of the town wherein the damages are to be assessed ; and it shall be the duty of such justice forthwith to issue a summons to one of the constables of this town, direct- ing him to summon the persons named in such certifi- cate, and shall specify a time and place in said summons at which the persons to be summoned shall meet, but no meeting of such persons shall be had within twenty days from the time of filing the assessment of damages in the town clerk' s office by the commissioner or com- missioners of highway. {Id. § 5. For form of sum- mons, see Appendix No. 67.) The party applying for a jury and obtaining a cer- ALTEEIXG AND DISCONTINTTING HIGHWAYS. 279 tificate of the names of the persons drawn for that purpose, may select the justice of the proper town. ■Care should be taken to deliver such certificate to the justice within twenty -four hours from the time of its receipt. Six jurors to he drawn. — ^Upon such persons appear- ing at the time and place mentioned in the summons, the justice who issued the summons shall draw by lot six of the persons attending to serve as a juiy, and the first six persons drawn who shall be free from all legal •exceptions, shall be the jilry to re-assess all the dam- ages required to be re-assessed upon the same highway ; -and the said jury shall be sworn by the said justice well and truly to determine and re-assess such damages as shall be submitted to their consideration, and shall take a view of the premises, hear the parties and such witnesses as may be offered by the parties, and sworn by such justice before them, and shall render their verdict in writing under their hands, which shall be certified by said justice and be delivered to the com- missioners of highways of the town, and the same shall be final. {Id. % 6. For form of verdict and certificate, see Appendix No. 68. ) This provision is constitutional. {Clark V. Miller, 54 N. Y. R. 528.) It is not essential to the validity of the proceedings that the same justice who issued the summons for the jury should certify their verdict. The statute in that respect is merely directory, and where the justice re- fuses or is unable to act, the verdict may be certified by another justice of the town. {People v. Supervi- sors of Ulster, 34 N. T. R. 268, overruling same case, 32 Bard. 473.) Notice of the time and place of empanelling the jury, and qi the subsequent proceedings, must be given 280 THE LAW OF HIGHWAYS. to the opposite parties, and in the absence of such no- tice the whole proceedings will be set aside with costs. {People V. Tallman, 36 Barb. 222.) In making the re-assessment, the jury are to proceed in the same manner as the commissioners on making the assessment. The manner in which such commissioners proceed is fully set forth in the former part of this chapter. Where jury disagree. — In case the jury fail to agree on a re-assessment of such damages, after having been kept together for such time as the justice by whom they were impannelled shall deem reasonable, such justice may discharge them. A new jury may be summoned and impannelled, before whom the same proceeding shall be had for such re-assessment as might have been had before the first jury. {People v. Lewis, 26 How. 378.) The jury should not separate until they have agreed, or are discharged by the justice. Where the first jury cannot agree, it is the duty of the person applying to see that a new jury is summoned. If any of the jury drawn shall refuse, or be prevented from, serving, the justice may draw others to fill the vacancy. 5. Costs of Assessments, and by Whom Paid; In all cases of assessments of damages, under the provisions of this act, by commissioners appointed by a county court, the costs thereof shall be paid by the town in which the damages shaU be assessed, and in cases of re-assessments of damages by a jury, on the application of the commissioners of highways of any town, and the first assessment shall be reduced thereby, the costs of such assessment shall be paid by the party claiming the damages, otherwise by the town ; and in ALTERING AND DISCONTINUING HIGHWAYS. 281 case a re-assessment of damages shall be had on the application of the party for whom the damages were assessed, and such party shall fail to increase the same, he shall pay the costs thereof ; but when such. damages shall be increased by the jury, the costs shall be paid by the town ; and when applications shall be made by two or more persons for the re-assessment of damages by a jury, such jury shall be obtained in conformity with the terms of the notice first served upon the clerk of the town in which the damages are to be assessed ; and all 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 same, before a justice of the peace. (Laws 1847, chap. 455, § 7.) Commissioners of highways, who have paid the jur- ors' fees and other costs of a re-assessment of the damages of a land owner, occasioned by laying out a road through his lands, on appeal by them from the original assessment, upon which appeal the amount of the assessment is reduced, can maintain an action to recover such costs of the land owner. {Cary v. Mars- ton, 56 Barb. 27.) • Allowance. — Town clerks shall be allowed the sum of fifty cents for drawing and certifying a jury, as pro- vided 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 282 THE LAW OF HIGHWAYS. serve, then one dollar ; if from the same town, and shall attend and not serve, twenty-five cents ; if they shall serve, then fifty cents each. (Laws 1847, chap. 455, § 19.) 6. Damages Assessed to be Audited by Super- VISOKS. All damages which may be finally assessed or agreed upon by commissioners of highways for the laying out of any road, except private roads, shall be laid before the board of supervisors by the supervisor of the town, to be audited with the charges of the commissioners, justices, surveyors, or other persons or officers em- ployed in making the assessment, and for whose ser- vices the town shall be liable, and the amount shall be levied and collected in the town in which the road is located, and the money so collected shall be paid to the commissioners of such town, who shall pay to the owner the sum assessed to him, and appropriate the residue to satisfy the charges aforesaid. (Laws 1847, chap. 455, § 23.) The award of damages by the commissioners or jury is conclusive on the board of supervisors, and cannot be revised by them ; but they must cause it to be raised by tax. {People v. Supervisors of St. Law- rence, 5 Cow. 292.) Under the provisions of the Re- vised Statutes (1 B. S. 515, § 69), the board of supervi- sors might examine into the principles on which such assessment had been made, and increase or reduce the damages, but the act of 1847, above cited, gives them no such power. Supervisors, how compelled to audit damages. — Should the board of supervisors refuse to audit the ALTERING AND DISCONTINUING HIGHWAYS. 383 damages so assessed, they may be compelled to do so by mandamus. {People v. Supervisors of Ulster, 3 Barh. 336, and cases cited.) 7. Damages and Expenses, How Collected. The amount of damages, as finally settled, together with the charges of the commissioners of highways, justices, surveyors, and other persons or officers em- ployed in making the assessment, shall be levied and collected in the town, within which the highway shall be situated. The moneys so collected shall be paid to the commissioners of highways of the same toivn, who shall pay to the owner the sum assessed to him, and appropriate the residue to satisfy the charges. (1 R. 8. 517, § 70, as modified by chap. 180 of 1845 ; Clar?c V. Miller, 42 Barb. 255.) 8. Certiokaei op Proceedings. If the proceedings for the assessment of damages by the commissioners appointed by the county court, or for the re-assessment of such damages by the jury, are in any respect irregular, a certiorari may be had for a review of the proceedings. {People v. Tallman, 36 Barb. 222 ; People v. Lewis, 26 JIow. 381.) If the proceedings to re-assess are reversed on certiorari, the original assessment of the commissioners stands sub- ject to be annulled on re-assessment regularly made. {People V. Lewis, supra.) The application for re-as- sessment of damages by a jury is not an appeal, in any sense ; but is like a motion for re-argument of the same matter before another tribunal. It is no objec- tive to such an application that it is made by several land owners. {People v. White, 59 Barb. 666.) The 284 THE LAW or HIGHWAYS. power of the commissioners is expended when they make and sign their assessment and file it in the town clerk's office, and they cannot review their action by filing another assessment. {People v. Mott, 5 JV. Y. Sup. 207.) A certiorari should not be granted upon the applica- tion of two or three out of a large number of persons interested in assessments for local improvements. (People V. McDonald, 4 Bun. 187 ; -S'. C, 69 If. Y. B. 362.) APPEAL FROM THE COMMISSIONEKS. 285 CHAPTER XI, APPEAL PKOM THE COMMISSIONERS. Bight of appeal— appointment of re- ferees. Proceedings of the referees. Powers and duties of referees. Referees' decision and its effect. 5. Commissioners to carry out decision. 6. Effect of appeal. 7. Eeferees' fees. 8. In what cases no appeal lies. 9. Certiorari of proceedings. 1. Right of Appeal — Appointment of Referees. Any 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 Revised Statutes ; and when any appeal shall be brought under this section, the said judge, or in case of his residence in the town, or of his interest in the land through which the road shall be laid out, or in case he is of kin to any of the persons interested in said lands, or in case of his disability, for any cause, then one of the justices of the sessions shall, after the expiration of the said sixty days, appoint, in writing, three disinterested freeholders, who shall not have been named by the parties interested in the appeal, and who shall be resi- 286 THE LAW OF HIGHWAYS. dents of the county, but not of the town, wherein the road shall 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 deliver to them all papers per- taining to the matters referred to them. Upon receiv- ing notice of appointment the said referees shall pos- sess all the powers and discharge all the duties here- tofore 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 proceeding to hear the appeal or appeals, they shall be sworn by some officer author- ized to take affidavits to be read in courts of record, faithfully to hear and determine the matters referred to them. (Laws 1847, chap. 455, § 8 ; for forms herein, see Appendix Nos. 69-78. ) Who may appeal. — The right of appeal to the county judge from an order of the commissioners of highways laying out, altering or discontinuing, or refusing to lay out, alter or discontinue a highway, is given to every resident tax-payer of the town in which such road is located. It is not restricted to the applicants for the laying out, altering or discontinuing of such highway, nor to the owners of the land through which it runs. {People v. Cortelyou, 36 Barb. 164.) According to the spirit and reasoning of this case the right of appeal is also given to every person liable to be assessed for highway labor and owning lands in a town in which he is not a resident ; since every such person may apply to alter, discontinue or lay out a highway in the town where he owns the land. (See 1 Ji. S. 513, § 54, as amended 1836, chap. 122.) Every person deeming himself aggrieved may appeal, APPEAL FROM THE COMMISSIONERS. 287 and lie is not concluded by a decision made on an ap- peal from the same order taken by another. {ClarTc v. Phelps, 4 Cow. 190.) It is not essential to the right of appeal that, the person taking it should be in fact ag- grieved ; if he conceives himself so it is sufficient. {People V. Champion, 16 John: 61.) A corporation owning lands on which a highway is laid out, is a "person " within the meaning of the statute giving the right of appeal. The design of the statute was to give the right to all persons or parties, whether natural or artificial, who should conceive themselves aggrieved. {People V. May, 27 Barb. 238.) An innkeeper, whose only interest is that his trade will be injured by the diversion of travel, cannot sus- tain a certiorari to review the proceedings of the high- way commissioners. {People v. Schell, 5 Lans. 352.) To what judge. — The appeal is to the county judge of the county in which the road is situated. But in case such judge resides -in the town where the road is situated, or is interested in the lands through which the road is laid out, or is of kin to any of the persons interested in said .lands, or in case of his disability for any cause, he is not to appoint the referees, but they are to be appointed by one of the justices of sessions. It is an objection to the competency of the judge or justices of sessions to entertain the proceedings that such judge or justice was one of the twelve freeholders who certified to the necessity, or propriety of laying out or discontinuing the road, but such objection may be waived. {Commissioners of Carmel v. Judges of Putnam, 7 Wend. 264.) The county judge has no right to make an order designating the justice to make the appointment. {Peo- ple V. Commissioners of Greenburgh, 57 N. Y. i?.549.) 288 THE LAW OF HIGHWAYS. Time to appeal. — The appeal must be taken within sixty days after the order of the commissioners laying out, altering or discontinuing, or refusing to lay out, alter or discontinue a highway shall have been filed in the town clerk' s ofiice. By the fifty-sixth section of the Highway Law it is provided that the time for ap- pealing shall be computed from the tim** of recording the order in the town clerk's office, but the same con- struction must undoubtedly be given to this provision as is given to that providing for the recording of deeds of real estate— that is, that they shall be deemed re- corded from the time of their delivery to the clerk. Form of appeal. — Every such appeal shall be in writing, addressed to the county judge of the county, and signed by the party appealing. It shall briefly state the ground upon which it is made, and whether it is brought to reverse entirely the determinatinn of the commissioners, or only to reverse a part thereof ; and in the latter case it shall specify what part. (1 It. S. 518, § 86, as modified by Laws 1847, chap. 46.'5, § 8 ; see form No. 69.) The grounds on which the appeal ie made should be explicitly, though briefly stated. But a notice of appeal stating as a ground merely that the order of the commissioners is illegal, has been held to be good. {Commissioners of BusTiwick v. Meserole, 10 Wend. 122.) So an appeal from the determination of commis- sioners refusing to lay out a road, in the following form : " I do hereby appeal from the determination of commissioners of highways in this matter to A, B & C, three judges of the Court of Common Pleas in and for the county of Putnam. August 26, 1829." Signed, etc., was decided to be a sufficient compliance with the above section. {Commissioners of Carmel v. Judges APPEAL FROM THE COMMISSIONERS. 289 of Putnam, 7 Wend. 264.) Under the existing law this form would, of course, have to read: "To A. B., county judge of Putnam county." In other respects the section under which these decisions were made is the same now as it was at the time they were given. A notice of appeal, specifying that the order of the commissioners is unlawful and erroneous is sufficient to give the county judge jurisdiction to appoint referees. It is not necessary to state all or any of the reasons tending to show the order to be erroneous or illegal. {Bector v. ClarTc, 78 N. Y. R. 21.) It was formerly decided that the judges, on appeal, could only affirm or reverse the decision of the com- missioners in toto, except in cases where roads were laid put without the iiiitervention of freeholders ; that they had no power, except in such cases to affirm in part, and that the statement in the appeal as to whether it was brought to reverse, in whole or in part, applied only to such exceptional case. {Commissioners of SJierhurne v. Judges of Chenango, 25 Wend. 453.) But the act of 1847 (Laws 1847, chap. 455, § 9), extends the power of the referees on appeal to a partial rever- sal or modification of the order of the commissioners. {People V. Commissioners of Cherry Valley, 8 N. T. R. 482 ; People v. Baker, 19 Barb. 240 ; for form of appeal, see Appendix No. 69.) Notice to commissioners of appeal. — There is no provision made requiring notice of the appeal to be given to the commissioners until the referees are ap- pointed and are ready to proceed. But it would be well to give the commissioners such notice that they may suspend all proceedings for opening the road. (See form No. 70.) 20 290 THE LAW OF HIGHWAYS. On an appeal from a determination of commissioners of highways laying out a Mghway, no notice of the time and place of hearing the appeal before referees is required to be given to the owner or occupant of the lands to be taken. The only notice is to the commis- sioners and to one or more applicants for the road. {People V. Burton, 65 N. T. B. 452.) Appointment of Referees. — At the expiration of sixty days after the order of the commissioners appealed from shall have been filed in the town clerk' s oflice, the county judge, or in case he is a resident of the town, or is interested in the land through which the road shall be laid out, or is of kin to any of the per- sons interested in such land, or is otherwise disquali- fied, then one of the justices of sessions shall appoint, in writing, three referees, who are to hear and deter- mine all the appeals brought within the sixty days. Such referees are to be three disinterested freeholders — residents of the county but not of the town wherein the road is located. They are not to be named by the parties interested in the appeal, and should not be of kin to any such parties, as in such case they would have no jurisdiction to hear the appeal, and their decision would be void. (People v. Flake, 14 How. 527.) Where several persons separately appeal, there should be but one set of referees, one hearing, and one order. {Disosway v. Winant, 34 Barb. 578 ; People V. Kniskern, 54 N. Y. R. 52.) The referees are not to be appointed until after the expiration of the sixty days, that they may hear and determine all the appeals that are to be brought. But it is probable that if they should be appointed within that time, and should proceed to hear the appeals, their proceeding and decision woiild not be void ; but APPEAL FROM THE COMMISSIONERS. 291 it would be an error which might be remedied by certi. orari. {Harrington v. People, 6 Barh. 607.) Should the judge refuse or neglect to appoii^t the referees, he may be compelled to do so by mandamus. (For form of appointment, see Appendix No. 71.) Order to he filed. — All orders for the appointment of the referees shall be filed and recorded in the office of the town clerk of the town in which the road shall be located. (Laws 1847, chap. 455, § 21.) Notice to Referees.— It is the duty of the judge mak- ing the appointment to notify the referees of their ap- pointment, and to deliver to them all papers pertain- ing to the matter referred to them. If, from any cause, any of the referees appointed shall be prevented from serving, or shaU refuse to serve, the judge who appointed him may appoint another to supply his place. {Id. § 20 ; see form of notice. Appendix No. 73.) 2. Proceedings oy the Referees. 'Notice. — It shall be the duty of the referees to pro- ceed thereon as soon as may be convenient. Where the determination appealed from was against an appli- cation for laying out, altering or discontinuing a road, the referees shall give notice to the commissioners by whom such determination was made. When appeal is from a determination in favor of an application for laying out, altering or discontinuing a road, the notice shaU be given to the commissioners and to one or more of the applicants for such road. In all cases, the notice shall specify the time and place at which the referees will convene to hear the appeal. (1 R. 8. 518, § 87, 292 THE LAW OF HIGHWAYS. as modified by Laws 1847, chap. 455, § 8. For form of notice, see Appendix No. 75.) Service of notice. — Every such notice shall be served at least eight days before the time mentioned therein, by delivering the same to one of the commissioners whose determination is appealed from, or by leaving the same at his dwelling-house. If the notice be also directed to one of the applicants, it shall be served in the same manner. (1 R. S. 519, § 88.) After the appointment of the referees on an appeal they become actors, and are bound to notify the par- ties to proceed ; and their neglect cannot be imputed to the appellant as his laches. {Clark v. Phelps, 4 Gow. 190.) The notice must be in writing, and should be served personally if possible. They should, as early as possible, determine upon the time and place of meeting to hear and determine appeals, and should prepare the notices of such meet- ing and cause them be to be served as above provided. The notices must be in writing. The referees have no jurisdiction to proceed on the appeal, untU the notice of eight days of the time and place of meeting has been served in the manner above prescribed. {People v. Judges of Herkimer, 20 Wend. 186.) Notice should also be given to the parties bring- ing the appeal, although no special provision is made for such notice. Should the referees proceed to hear and determine the appeals without notice to the appel- lants, their proceedings may be reversed on certiorari. (See People v. Tallman, 36 Barl. 222.) Although the notice need only be delivered to one of the commissioners, it is notice to all ; and the one who receives it should give information to the other com- missioners. APPEAL FEOM THE C0MMI8SI0NEKS. 293 Notice to occupants. — A three days' notice in writing to the occupants of the land through which the road runs, of the time and place of their meeting, is neces- sary, where the appeal is from an order of the commis- sioners refusing to lay out or alter a road. The eighth section of the act of 1847, ahov& cited, declares that the referees "shall posbess all the powers and dis- charge all the duties heretofore possessed and dis- charged by three judges." Among the powers and duties possessed and discharged by the three judges, it was provided that when an appeal had been made from a determination of the commissioners refusing to lay out or alter a road, and the judges shaU reverse such determination, such judges shall lay out or alter the road applied for ; and in doing so, shall proceed in the same manner in which the commissioners of highways are directed to proceed in like cases. (1 R. 8. 519, § 91.) But before the commissioners of high- ways shall determine to lay out a highway, they are required to give three days' notice in writing to the occupant of the land through which the road is to run of the time and place at which they will meet to decide on the application. (1^. S. 514, § 63.) The referees being required to proceed in the same manner as the commissioners, must give the same notice. (Terpen- ing V. Smith, 46 Barh. 208 ; People v. Judges of Her- kimer, 20 Wend. 186 ; People v. Robertson, 17 How. 74.) The fact that the occupant was present and sworn as a witness, is no waiver. {People v. Judges of Her- Jcimer, supra.) And where the occupants of the land waive notice of the proceedings of the referees, but afterwards, and before any action was had on such waiver, withdraw it, the referees cannot proceed with- out giving the required notice. {People v. Grozier, 12 Abh. 445 ; for form of notice, see Appendix No. 79.) 294 THE LAW OF HIGHWAYS. Referees to meet— The referees having given the requisite notices, it is their duty to convene at the time and place mentioned in the notice, and hear the proofs and allegations of the parties. They shall have power to issue process to compel the attendance of witnesses, and may adjourn from time to time, as may be necessary. Their decision, or that of any two of them, shall be conclusive in the premises ; and every such decision shall be reduced to writing, signed by the referees making it, and be filed by them in the office of the town clerk of the town who shall record the same. (1 H. S. 519, § 89.) If the judges to whom the appeal is made refuse to act, the proper course is to apply for a mandamus to compel them to proceed. {Lansing v. Caswell, 4 Paige, 519.) Referees to he sworn. — ^Before proceeding to hear the appeal, the referees shall be sworn by some officer authorized to take affidavits to be read in courts of record, faithfully to hear and determine the matters referred to them. (Laws 1847, chap. 455, §8.) The taking of the oath prescribed is an act necessary to give the referees jurisdiction to proceed to hear and determine the appeal ; and an omission to do so will render all their acts coram non judice and void. Nor can the parties to the proceeding waive such an irreg- ularity as the omission of the referees to be sworn. It is unlike proceedings between private parties, where they may waive any irregularity they choose. The whole town have an interest in the proceeding, and have a right to require that the proceedings shall, in all material respects, conform to the requirements of the statute. {People v. Connor, 46 Barb. 333.) It would be well to annex the affidavit to the decision, as APPEAL FROM THE COMMISSIONEES. 295 it will then appear of record that the requirement of the statute has been complied with. The oath may be taken before a clerk, deputy clerk, or special deputy clerk of a court, a notary public, mayor, justice of the peace, surrogate, special county judge, special surro- gate, county clerk, deputy county clerk, special dep- uty county clerk, or commissioner of deeds, within . the district in which the officer is authorized to act ; and, when certified by the officer, to have been taken before him, may be used in any court, or before any officer or before any other person. (Laws 1880, chap. 178, § 842.) To compel attendance of witnesses. — The referees have power to issue process to compel the attendance of witnesses, and should do so at the request of either party. This process should be a subpoena directed to the witness, and requiring his attendance before them at the time and place therein mentioned. The sig.- nature of one of the referees to such subpoena would probably be sufficient, but where it is possible the sig- natures of all should be obtained. (For form of sub- poena, see Appendix N'o. 77.) May adjourn. — The referees may adjourn from time to time, as may be necessary. (1 B. 8. 519, § 89.) There is no limit to the adjournments, so long as they are necessary, which is a matter of discretion with the referees. {People v. J^erris, 41 Barb. 124.) After the hearing has been closed they may adjourn from time to time to enable them to make the decision. (Id.) But when once the decision has been made, and they have adjourned without day, their power and jurisdic- tion over the matter is spent, and they cannot after- wards proceed in the matter. {Rogers v. Runyan, 9 296 THE LAW OF HIGHWAYS. How. 248 ; People v. Ferris, 41 Bar}). 121.) It is not necessary that the order should show that all the referees met. (People v. Burton, 65 N. Y. R. 452.) 3. Powers and Duties or Refeeees. The referees possess all the powers and are to dis- charge all the duties heretofore possessed and dis- charged by the three judges. (Laws 1847, chap. 455, § 8.) They have no authority to entertain an objection to the regularity of the proceedings anterior to the decision of the commissioners ; their decision can only be on the merits, as to the necessity and propriety of laying out, altering, or discontinuing the road. If any irregularity has intervened previous to the decision of the commissioners, it can be corrected only by certior- ari, directed to the commissioners. {Commissioners of WarwicJc v. Judges of Orange, 13 Wend. 432 ; Peo- ple V. Harris, 63 N. Y. JR. 391 ; People v. Van Alstyne, 3 Keyes, 35.) They are required to hear and decide the appeal on the facts existing at the time of the liear- ing before them, and not on the facts existing at the time of the original application for the road. In this respect such hearing is in the nature of a new proceed- ing. (Peoples. Goodwin, 5 N. Y. R. 568.) They are like other inferior and subordinate officers and tribunals that are creatures of statute, to be confined to powers expressly conferred, or such as are necessarily incident to express powers. {People v. Ferris, 41 Barb. 121.) It is the duty of the referees to proceed to hear proofs and allegations of the parties, and to make and file their decision in writing, affirming, reversing or modi- fying the order appealed from. They have no power to dismiss the appeal and refuse to proceed further on the ground that the order of the county judge was im- APPEAL FEOM THE COMMISSIONERS. 297 providently or irregularly granted, or that the appellant had no right to bring the appeal. But if they dismiss the appeal, the remedy of the party aggrieved is not by certiorari but by mandamus to compel them to pro- ceed. {People V. Cortelyou, 36 Barb. 164.) To decide on merits. — As has been before stated, the referees are to hear and decide the appeal, not on the facts existing at the time of the original application for the road, but on the facts existing at the time of the hearing before them. {People v. Ooodwin, 5 N. T. JR. 568. ) But in People v. Gortelyou., supra, it was inti- mated by the learned judge that the facts and proceed- ings necessary to give jurisdict;ion to the commissioners in making the order appealed from, was a subject for consideration by the referees on the appeal. And in the case of The People v. Gline, 23 Barb. 197, it was said by Strong, J. : " The statement in the determina- tion or order of the commissioners, that twelve free- holders had met and decided that the proposed road and alterations were necessary and proper, was in effect an admission by them that such freeholders were com- petent and unobjectionable. As, however, it involved the question of jurisdiction, it was not conclusive, and might be re-examined by the referees when the matter came before them." And People v. Goodwin (5 N. T. H. 568), was cited as sustaining these views. But in The Commissioners of Warwick v. 'Judges of Orange (13 Wend. 482), it was decided that the judges had no authority to entertain an objection to the regularity of the proceedings anterior to the decision of the commis- sioners. And since the referees now possess all the powers, and are to discharge all the duties heretofore possessed and discharged by the three judges, this decision is as applicable now as it then was. In deliv- 298 THE LAW OF HIGHWAYS. ering the opinion of the court Nelson, J., said : "In the case of Lawton v. The Commissioners of Highways ofCambridgei^ Gaines, 179), the opinion was expressed by Mr. Justice Spencee, and, as I understand it, it was the opinion of the court, that the authority of the judges to hear the appeal was confined to the merits alone — the fitness or unfitness of laying out the road. No diiferent opinion has been expressed in any subse- quent case that has come under my notice. The pro- ceeding by appeal was not intended to be a review of legal questions, or irregularities that might exist in the preliminary steps, as on a writ of certiorari ; but to be an examination of the necessity or propriety of the road, assuming all the previous steps to have been regularly taken. A certiorari directly to the commis- sioners is the appropriate remedy for the correction of errors committed by them. The decision of the judges is conclusive upon the parties in the premises. (1 R. S. 519, § 89.) It is obvious if they had jurisdiction to confirm or reverse the decision of the commissioners for mere error of law, their judgment would be final, which could not have been intended by the Legislature ; nor has such been the exposition of their powers by • this court, and had it been, it would be the only an- swer necessary to be given to the numerous points of law raised in this case. The judges can only entertain, examine and decide the appeal on its merits, and then their decision is final and conclusive, so far as the merits are involved. * * * * Upon the whole, therefore, I perceive no solid reasons against the posi- tion laid down in the case of Lawton v. Commissioners of Highways of Cambridge, that the authority of the judges to hear the appeal is confined to the merits alone ; on the contrary, much inconsistency and viola- tion of sound principles is avoided, and the spirit of APPEAL FROM THE COMMISSIONERS. 299 the statute faithfuDy executed, by confining them to that question. The power of this court can be legiti- mately exerted to keep both the commissioners and the judges within their proper bounds in conducting their proceedings, and then the determination first by one, and then by the other on appeal, will be conclusive in the premises, according to the letter of the statute. Upon any other view, a road might be laid out, upon a reversal of the determination of the commissioners, on mere legal questions, without involving their opin- ion upon the merits. The act contemplates such an opinion before the judges can act." So in Tlie People V. Judges of Suffolk (24 Wend. 249), the court decided — Mr. Justice Cowen delivering the opinion — that an appeal to three judges does not lie from a determination which is void for want of jurisdiction. The original order being coram nonjudice and void, is no more the subject of such an appeal than would be a judgment rendered by the commissioners in a civil action. An excess of jurisdiction is correctable by certiorari only. In People v. Harris, 63 N. T. B. 391, Earl, J., after an elaborate opinion thoroughly reviewing the decision on this point, says : "I am therefore of opin- ion, both upon the weight of authority and upon a fair consideration of the objects and purposes of the statutes regulating the laying out of highways, and the appeals from the determination of highway com- missioners, that, it was the duty of the referees to con- sider only the merits of the case ; and that they did not err in refusing to receive evidence assailing the jurisdiction of the commissioners to make the order appealed from." (See also People v. Sherman, 15 Hun, 575 ; apd in Rector v. dark, 78 N. T. R. 21,) Church, Ch. J., says : "The duties of the referees are prescribed. They proceed to a hearing de novo ;■ they 300 THE LAW OF HIGHWAYS. are required to hear the proofs and allegatioiis of the parties and render their decision upon what appears before them, and they do not sit in review of the evi- dence or proceedings before the commissioners. The whole merits are before the referees, and the fitness or unfitness of the alteration is the question to be deter- mined." {People V. Harris, 63 N. Y. R. 391.) To consider damages. — The damages are a proper subject for the referees to consider only so far as to inquire whether the benefit wUl equal the expense. This must be inquired into by the referees as well as by the commissioners. The referees pass in review upon the acts of the commissioners, and are substi- tuted in their place ; all the considerations which are proper for the one, are also proper for the other tri- bunal. {Commissioners of Bushwick v. Meserole 10 Wend. 126.) Reversal in part. — The referees may reverse the decision of the commissioners in part, and aflirm it as to the residue. {People v. Baker, 19 Barb. 240 ; Peo- ple V. Commissioners of CTierry Valley, 8 N. Y. R. 482.) It was formerly decided that the judges or referees could only affirm or reverse the whole deci- sion, except in a case where the road was laid out by the commissioners without the intervention of the free- holders. {Commissioners of Sherburne v. Judges of Chenango, 25 Wend. 453.) But the act of 1847 (Laws 1847, chap. 455, § 9), extends the power of the referees on appeal to a partial reversal or modification of the order of the commissioners. When to lay out or alter road. — Since the referees possess all the powers, and are to discharge all the APPEAL FKOM THE COMMISSIONERS. 301 duties heretofore possessed or discharged by the three judges (Laws 1847, chap. 455, § 8), therefore, where an appeal is made from a determination of commis- sioners refusing to lay out or alter a road, and the referees shall reverse such determination, such referees are to lay out or alter the road applied for ; and in doing so, are to proceed in the same manner in which commissioners of highways are directed to proceed in the like cases. Such road shall be opened by the com- missioners of the town, in the same manner as if laid out by themselves. (1 B. S. 519, §91.) The referees should make such order in relation to the laying out or altering the road, as in their judgment the commissioners should have made. (^People v. Commissioners of Cherry Val- ley, 8 N. Y. B. 476 ; People v. Champion, 16 John. 61.) And where they simply reverse a decision of the com- missioners, refusing to lay out or alter a highway, a mandamus lies to compel the referees to lay out or alter such highway. {People v. Barber, 12 Barb. 193.) The manner in which the commissioners are to proceed in laying out or altering a highway, and which is to be followed by the referees, is fully set forth in the preceding chapters. In laying out the road on appeal the referees are not limited to the route specified in the application for the road ; they may, in the exercise of a sound discretion, make such variations as they think proper. The de- parture, however, from the route of the proposed road must not be so great as to induce the belief that pre- liminary proceedings have been wholly disregarded ; the general course of the road must be preserved. {HallocTc V. Woolsey, 23 Wend. 328/ Woolsey v. Tompkins, 23 Wend. 324 ; see ex parte Commission- ers of Danube, 1 Cowen, 142.) An order laying out a highway may be void for 302 THE LAW OF HIGHWAYS. uncertainty. {People v. Diver and others. Referees, 19 Hun, 263.) Commissioners to open. — When the commissioners refuse to open the road laid, out by the referees on re- versing the commissioners' decision, a mandamus lies to compel them to open it. {People v. Champion, 16 John. 61.) Such writ is to be directed to " The Com- missioners." It is only in case of disobedience to the writ, that the commissioners are to be proceeded against personally. {Id.) But where the referees 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 wUl not be granted to compel them to proceed to do it. {People V. Commissioners of Cherry Valley, 8 iV.' Y. a. 476 ; People v. Commissioners of Plainfleld, 7 How. 27.) 4. Refekees' Decision and its Effect. Having heard the proofs and allegation of the par- ties, and agreed upon their decision, they are to reduce such decision to writing, sign it and file it in the town clerk's office. Where they cannot aU. agree as to the decision of the matter, two of them may decide it and sign the decision. (1 .ffi. >8'. 519, § 89.) Where several appeals are heard by them, they should embrace the whole matter in the one decision. The order should not be signed until they have all deliberated on the matter and agreed upon their decision. Where the referees heard the appeal, and then separated, intending to meet again, but did not, and an order was drawn by the attorney of the appellant and signed by the refer- ees at their several residences, it was held to be ground APPEAL FEOM THE COMMISSIONEES. 303 for reversal. • {Harris v. WTiUney, 6 How. 175 ; Keeler V. Frost, 22 Barh. 400 ; Downing v. Rugar', 21 Wend. 178.) Where the referees have heard both parties and duly closed the hearing, and have entered upon the task of forming a determination, they have no power to enter- tain a motion of third persons to open the cause for a further hearing. The only power then left them is to decide ; which includes the incidental power of ad- journing from time to time for that purpose, and to sign and cause to be filed the evidence of their deci- sion. {People V. Ferris, 41 Barh. 121 ; for form of decision, see Appendix No. 78.) Amending decision. — After the decision has been made, the referees have no power to review or alter such decision ; but where errors have occurred in the order or certificate filed by them — as in the description of the road — they may file an amended order or certifi- cate correcting such errors. In making up the certifi- cate they act ministerially. {Woolsey v. Tompkins, 23 Wend. 324; Rogers v. Runyan, 9 How. 248; see 49 id. 208 ; 49 Barh. 136.) Effect of decision. — It is provided by the 89th sec- tion that the decision of the referees, or any two of them, shall be conclusive in the premises. {People v. Sherman, 15 Hun, 575.) But this means only that it shall be conclusive on the merits as to the particular case in which the appeal is taken, and does not pre- vent or affect a new application for the same road. {Bruyn v. Oraham, 1 Wend. 370.) Nor is one person concluded by the decision of another's appeal in the same matter. {Clarlc v. Phelps, 4 Cow. 190.) The decision of the referees is only conclusive on the 304 THE LAW OF HIGHWAYS. merits. They can only entertain, examine, and decide the appeal on its merits. But if any irregularity occur in their proceedings, or in the proceedings of the com- missioners in making the order appealed from, such irregularity may be corrected by the Supreme Court on certiorari. {Commissioners of Warwick v. Judges of Orange, 13 Wend. 432.) Due notice must be given after the decision of the referees before laying out the road, otherwise the pro- ceedings of the referee will be void. {People v. Knis- Tcern, 54 N. T. R. 52 ; reversing 50 Barb. 87.) 5. COMMISSIONEES TO CaREY OuT DECISION. It is the duty of the commissioners of highways of the town to carry out the decision of the referees in the same manner prescribed by section 13 of chapter 180 of the act of 1845. By that section it was provided that "whenever there shall have been any final deter- mination upon any appeal or appeals provided for as aforesaid, making it necessary that any road or high- way shall be laid out, altered, opened or discontinued, it shall be the duty of the commissioner or commis- sioners 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." IShould the commissioners neglect or refuse to carry out such determination, a mandamus may be had to compel them to do it. appeal from the commissioners. 305 6. Effect of Appeal. The appeal operates as a stay of proceedings until the appeal is decided, and the commissioners cannot, in obedience to the decision in A's appeal, lay out a road through B's land while B's appeal is pending. If they do so, they are trespassers. (GlarTc v. Phelps, 4 Gow. 190.) But the appeal operates as a stay only from the time it was taken, and cannot undo or render illegal what has been lawfully done under the order appealed from. {Dralce v. Rogers, 3 Hill, 604. ) Where the determination of the commissioners laying out a road is appealed from, the sixty days' notice to remove fences is to be given after the decision of the referees is filed in the town clerk' s ofiice. (Laws 1847, chap. 455, § 8 ; Kelly v. Horton, 2 Cow. 424.) It must be given as well where a road has been estab- lished by an alteration, after the same had been laid out on appeal, as where a road is originally laid out by the commissioners, and actual notice must be shown. {Casev. Thompson, 6 Wend. 634.) Decision to remain unaltered for four years. — The decision of the referees laying out, altering or dis- continuing any road, in whole or in part, shall remain unaltered for the term of four years from the time the same shall have been filed in the ofiice of the town clerk. (Laws 1847, chap. 455, § 9 ) The afiirmance of the decision of the commissioners laying out a road, is making a decision laying out a road within the mean- ing of the statute. The policy of the provision is to prevent litigation for the period specified in regard to the road, after a decision on appeal. {People v. Pike, 18 How. 70.) But this provision does not apply to a refusal to lay out, alter or discontinue. {People v. Jones, 63 N. Y. R. 306.) 21 306 the law of highways. 7. Eefeeees' Fees. Every referee appointed as above provided shall be entitled to receive two dollars for every day employed in the hearing and decision of such appeal or appeals, to be paid by the party appealing where the deteimi- nation of the commissioners shall be confirmed, but where it is reversed to be a charge upon the county. (Laws 1847, chap. 455, § 9.) This embraces the case in which the determination is reversed only in part. {People Y. Supervisors Orange Co., 20 Hun, 196.) The statute makes no provision as to who shall pay the ref- erees' fees where they affirm in part and reverse in part the order of the commissioners. In such case the county Avould probably be chargeable for such fees. The affirmance by the referees of an order of com- missioners gives them a prima facie right to recover their fees of the appellant, and such right is not sus- * pended by the suing out of a certiorari upon such order to the Supreme Court. {Dissosway v. Winant, 33 How. 460, reversing same case, 34 Barb. 578. ) AVhere there are several appeals taken by different persons from the same order of the commissioners which are all heard at the same time, the referees are entitled to two dol- lars for each day occujjied in the hearing, as of one appeal only, not two dollars a day as against each appellant separately. {Id.) When all the appeals are heard as one, all the appellants are to be regarded as the party appealing, and all jointly liable to pay the referees' fees. Consequently, where the referees in such case bring an action against one of the appellants severally, for their fees, the action cannot be sustained where the defendant sets up, in answer, the non- join- der of the other appellants. {Id.) It is undoubtedly consistent for the referees to give each appellant a sep- APPEAL FROM THE COMMISSIONERS. 307 arate hearing, in which event each would be liable for the time occupied in his particular appeal, although the question was the same in all. {Id.) May assign demand for fees.— The referees may assign their demand for fees, the same as any other demand, and the assignee can maintain an action for their recovery in his own name. {Id.) 8. In What Cases no Appeal Lies. Where the commissioners of highways of two adjoin- ing towns, in different counties, assemble together in joint board and unite in an order laying out, altering or discontinuing, or refusing to lay out, alter or dis- continue a road or highway, their judgment and deter- mination cannot be .reviewed by appeal to a county judge of one of the counties. The statute makes no provision for an appeal in such case. The determina- tion of the joint board of commissioners must be con- sidered final, and equivalent in all respects to an order of one board of coinmissioners, aflSrmed by three refe- rees on appeal. (People v. Nelson, 26 How. 346.) So an appeal does not lie from a determination of the commissioners, which is void for want of jurisdiction. {People V. Judges of Suffolk, 24 Wend. 249.) Nor has a party aggrieved a right of appeal to the county court from thei determination of commissioners, ascertaining, describing and entering of record a road used for twenty years. {People v. Judges of Cortland, 24 Wend. 491.) What the proper remedy would be in such a case, has not, so far as I know, been decided. But this is certain, that if the proceeding of the com- missioners are, in any respect, irregular, or if they have no jurisdiction, or exceed their powers, certiorari 308 THE LAW OF HIGHWAYS. would be proper. In other cases the party might treat their proceedings as void, and set up the matter com- plained of in any action for penalty, etc., brought by the commissioners. {Id. ; see also Allyn v. Commis- sioners of SchodacTc, 19 Wend. 342.) 9. Ceetioeari of Proceedings. Either party, if dissatisfied with the decision of the referees, may sue out a writ of certiorari to the Su- preme Court to review their proceedings. But on the return of the referees to the certiorari no other ques- tion can be raised than those relating to the jurisdic- tion of the referees, and the regularity of their pro- ceedings. {Birdsall v. PJiillips, 17 Wend. 464 ; Prin- dle V. Anderson, 19 id. 391 ; People v. Goodwin, 5 JV. Y. B. 572; People v. Van Alstyne, 32 Barb. 131.) The court on such certiorari cannot examine into the merits of the appeal, or of the decision — the determin- ation of the referees thereon is final and conclusive, but it may examine into the regularity of their pro- ceedings, and into all questions whether of law or fact on which the referees' jurisdiction depends. {People V. Goodwin, supra; Commissioners of Warwick v. Judges of Orange, 13 Wend. 432.) Among the questions of jurisdiction thus subject to review is the question whether the owner of the in- closed, improved or cultivated lands, through which a highway is laid, has given his consent tht^reto. {People V. Goodwin, 5 N. Y. B. 568.) Also the ques- tion whether the persons making the certificate of its necessity were freeholders {People v. Commissioners of Seward, 27 Barb. 94) ; also the question whether they were twelve in number {Town of Gallatin v. LoucTcs, 21 Barb. 578) ; also the question whether the APPEAL JFKOM THE COMMISSIONEKS. 309 highway was laid out through the yard or garden of the owner without his consent {^x parte Clapper, 3 Hill, 458), or through an orchard. {People v. Com- missioners of Dutchess, 23 Wend. 360 ; see also, Peo- ple V. Van Alstyne, 33 Barb. 131.) If any irregu- larity has intervened previous to the decision of the commissioners, it can be corrected only by certiorari directed to the commissioners. {Commissioners of Warwick v. Judges of Orange, supra.) A certiorari is not proper while an appeal is pending to the county judge from the decision of the commissioners. {Peo- ple v. Wallace, 4 N. Y. Sup. 438 ) Who may have. — The right to have a certiorari is reciprocal and belongs as well to the commissioners as to the appellant. {Commissioners of Kinderhook v. Claw, 15 John. 537.) Application for writ. — ^The application for the writ is founded on affidavit, which should set forth facts showing a probability that wrong has been done, and that it is of a nature that can be corrected on certiorari. The application is to be made to the court at special term. It cannot be made to a judge at Chambers. {Gardner v. Commissioners of Warren, 10 How. 181 ; \2 Barh. 2\Q.) Notice of the application need not in general be given. {Id. ; see form No. 79.) Allowance. — The court may, in its discretion, either allow the writ in the first instance, or grant an order to show cause. {Matter of Bruni, 1 Barb. 187.) Writ and its form. — The writ issues in the name of the people, and should recite the names of the parties aggrieved and set forth the cause of complaint, with 310 THE LAW OF HIGHWAYS. the proceedings, and the people's desire to be certified {certiorari) of them, and command the referees to cer- tify and return the record and proceedings to the Su- preme Court on a specified day, called "return day," so that the court may cause to be done in the matter what of right ought be done. {Ex parte Mayor of Albany, 23 Wend. 211 ; People v. Commissioners of Salem, 1 Cow. 23.) The writ should be directed to the referees, by name, and give their title as referees appointed by the county judge, etc., and command them to certify and return to the Supreme Court at general term, on a day to be therein named, the appeal, together with the testimony given, and offered to be given on the hearing thereof, with their decision thereon, vnth all things touching and concerning the same. {People v. Commissioners of Salem, supra.) The writ should be made returnable at general term of the district in which the proceedings sought to be reviewed were had. {The People v. Kelly, 35 Barb. 444.) It should be tested, signed and sealed in the usual manner. (2 Burr. Pr. 195.) An indorsement should also be made upon the writ, signed by the clerk, showing that the writ has issued by order of the court. {MoU V. Commissioners of Rush, 19 Wend. 640 ; for form of writ, see Appendix No. 80. ) Effect of writ. — The writ, after service, acts as a stay of proceedings {PatcMn v. Mayor of Brooklyn, 13 Wend. 664), and the commissioners should not proceed to carry out the determination appealed from until the proceedings on certiorari are decided. But the pen- dency of the certiorari does not suspend the right of the referees to collect their fees. {Dissosway v. Wi- nant. 33 How. 460.) APPEAL FROM THE COMMISSIONERS. 311 The proceedings of the commissioners having been reviewed and reversed on certiorari, makes them ille- gal and void from the beginning. {Briggs v. Bowen, mJSr. T. R. 454.) When superseded. — If the writ has been improperly granted, a motion may be made to supersede it ; as where it was granted before the proceedings removed were wholly terminated ; and the motion to super- sede it may be made either before or after the writ is returnable. (1 Grary" s Pr. 161, and cases cited.) So, after the writ is returned, if it is misdirected, or is otherwise bad in point of law, or was irregularly or improperly allowed, the court will order it to be quashed. It cannot be quashed before it is returned, or at least returnable. {Id.) Metufn to writ. — The referees, prior to the return day mentioned in the writ, must certify and return to the Supreme Court at general term the appeal, together with testimony given and offered to be given on the hearing thereof, with their decision thereon, with all things touching and concerning the same. The return must show affirmatively that the referees had authority to act ; and where their authority and jurisdiction depends upon a fact to be proved before them, and such fact is disputed, they must certify the proofs given in relation to it for the purpose of enabling the higher court to determine whether the fact be estab- lished. {People V. Ooodwin, 5 If. T. H. 568 ; People V. Van Alstyne, 32 Barb. 132.) The decision of the referees being conclusive as to the merits, the court will not compel a return of the evidence rt'lating solely to the merits. {People v. Yan Alstyne, supra.) Such evidence should, however, be 312 THE LAW OF HIGHWAYS. included. (For form of return, see Appendix No. 81.) Proceeding to compel return. — Should the referees refuse or neglect to make return to the certiorari, the court may compel them to do so. (2 Cow. 515. See further as to the practice on certiorari, 1 Crary's Pr. 151.) Costs. — Referees are not county officers within the meaning of section 6, of 1 M. S. 384, and can in no event be personally charged with the costs of a certio- rari issued to them to review their decision. {People V. Sherman, 15 Hun, 575.) On an appeal from an order of referees made on reviewing an order of com- missioners of highways touching the laying out of the highway, no costs can be allowed the prevailing party. {People v. Heath, 20 How. 304.) It is irregular to insert costs in the record, without a special application to the court. {People v. Robinson, 25 How. 345.) OBSTRUCTIONS AND ENCROACHMENTS. 313 CHAPTER XII. OBSTRUCTIONS AND ENCROACHMENTS. 1. Obstruct!. ms at common law. 2. Ob-tniitiim of navigable rivers. 3. Encroachment by fences. i. Fallen trees to be removed. 5. Swi'giug gates in bignwaya. 6. Penalties for obstruction under the statute. . 7. Noxious weeds. 8. Abatement of obstruction. 9. Remedy by indictment. 10. Actions for special damages. 1. Obstructions at Common Law. The public have a right to an uninterrupted passage along a highway for themselves and their carriages to its iltmost extent, unobstructed by any impediment, subject, however, to such temporary obstructions as all public liighways must suffer in cases of evident necessity. They are entitled to the use and enjoyment of the whole of a highway, and no individual can ap- propriate a portion of it to his own exclusive use, and shield himself from responsibility to the public, by saying that enough is still left for the accommodation of others. {Hart v. Mayor of Albany, 9 Wend. 584 ; People V. CunningTiam, 1 Denio, 524.) An obstruc- tion of a highway for an unreasonable length of time, although in the prosecution of a lawful business, as in the loading or unloading of wagons or drays, or by stages waiting and soliciting passengers, is indictable as a public nuisance, although room enough might still be left for the accommodation of the public on the opposite side of the street. {Id.) It is immaterial for what length of time the practice may have pre- S14 THE LAW OF HIGHWAYS. vailed, for it is a well known maxim that no length of time will legalize a nuisance. Any Tinauthorized obstruction which unnecessarily incommodes or impedes the lawful use of a highway is a public nuisance at common law. (1 Hawk. P. C. •chap. 76, § 144.) Thus it is a nuisance at common law to dig a ditch or make a hedge or fence across a highway, or to lay logs or lumber therein, or to do any other act which will render it less commodious to the people. ( Wellb. on Highways^ 440.) Slight inconvenience and occasional interruptions in the use of a highway or navigable stream, which are temporary and reasonable, are not il'egal, merely be- cause the public may not for the time have the full use of the highway or stream. {People v. Horton, 64 M. T. 610.) What obstructions are allowable. — A temporary ■occupation, however, of a part of a street or highway by a person engaged in building, or in receivinsr or ■delivering goods, from stores and warehouses or the .like, is allowed from the necessity of the case ; but a systematic and continued encroachment., though for purposes of carrying on a lawful bnsiness is unjustifi- able. {People V. Cunningham, 1 Denio, 524.) The necessity to justify such temporary occupation need not be absolute ; it is enough if it be reasonable. No man has a right to throw wood or stones into the street at his pleasure, but inasmuch as fuel is necessary, a man may throw wood in the street for the purpose of having it carried to his house ; and it may lie there a reasonable time. So, because building is necessary, stones, bricks, lime, sand and other materials may be placed in the street, provided it be done in the most convenient manner. On the same principle, a merchant may have his goods in the street for the purpose of 0B8TETJCTI0NS AND ENCKOACHMEKTS. 315 removing them to his Store in a reasonable time. But he has no right to keep them in the street for the pur- pose of selling them, there, because there is no necessity for it. {Commonwealth v. Passmore, 1 Serg. & Bawle, 219. ) So, one who has occasion to leave a load in a highway must remove it with proinptness. If he let it remain there an unreasonable length of time, it may be removed as a niiisance. {Ngrthr.op y. Burrows, 10 Abb.m5.) It is said to be no nuisance for the inhabitants of a town to unload wood, etc., in the street before their houses, by reason of the necessity of the case, unless they suffer it to continue there an unreasonable time after it is unloaded. (2 Rol Abr. , 137 B. ; 1 HawTc. P. C. chap. 76, § 145.) A work of art, such as an ornamental statue, may be erected in a highway when it does not obstruct travel. {Tompkins v. Hodgson, 2 Hun, 146.) Canal Commis- sioners may occupy highways when necessary for the pursuit of their work, and may make a new road through the adjoining land. {Bogers v-. Bradshaw, 20 John. 735.) By Laws 1853, chap. 471, § 2, telegraph companies are authorized "to prect and construct, from time to time, the necessary fixtures for such lines of telegraph, upon, pver or under any of the public roads, streets and highways, and through, across or under any of the water within the limits of this State," and the company is bound to use reasonable care in- the construction and maintainance of its line. And if it appears that a post was not originally reasonably sufficient or that it was carelessly permitted to become insufficient by decay, then responsibility attaches ; but the company is not absolutely bound to have its posts in the streets so strong and secure that they cannot be blown down or 316 THE LAW OF HIGHWAYS. broken by any storm, nor is it bound to Insure the safety of passengers in the streets from injuries result- ing from the falling thereof. ( Ward v. A. & P. Tel. Co. 71 N. Y. R. 81.) Where the proximate cause of the breaking and fall thereof was a collision with a runaway team of horses and the wagon to which they were attached, the com- pany is not liable. {Allen v. A. & P Tel. Co. 21 Hun, 22.) What are not allowable. — But if the obstruction in such case be continued beyond a reasonable time, it becomes a public nuisance. Thus in the case of Sex Y.- Russell {& East. 427), a wagoner was convicted of a nuisance for occupying one side of a public street in a city, before his warehouse, in loading and unloading his wagons for several hours at a time, both by night and by day, and having one wagon at least usually standing before his warehouse, so that no carriage could pass on that side of the street, although there was room for two carriages to pass on the opposite side of the street. The court said that it should be fully understood that the defendant could not legally carry on any part of his business in the public street, to the annoyance of the public ; that the primary object of the street was for the free passage of the pub- lic and anything which impeded that free passage, without necessity, was a nuisance ; that if the nature of the defendant's business was such as to require the loading and unloading of so many more wagons than could conveniently be contained vnthin his own pri- vate premises, he must either enlarge his premises or remove his business to some more convenient spot. So in Rex v. Cross (3 Camph. 226)^ the defendant was indicted and found guilty for keeping coaches at a OBSTEUCTIONS AND ENCEOAGHMENTS. 317 stand in the street waiting for passengers. The same principle was acknowledged in Rex v. Janes (3 Camph. 230), where the defendant, a timber merchant, occu- pied a small yard close to the street, and from the smallness of his premises, was obliged to deposit the long pieces of timber in the street, and to have them sawed up there, before they could be carried into the yard. It was argued that this was necessary for his trade, and that it occasioned no more inconvenience than draymen letting down hogsheads of beer into the cellar of a publican. But Lord Ellenbokough said: "If an unreasonable time is occupied in the operation of delivering beer from a brewer' s dray into the cellar of a publican, this is certainly a nuisance. A cart or wagon may be unloaded, at a gateway, but this must be done with promptness. So as to the repairing of a house ; the public must submit to the inconvenience occasioned necessarily in repairing the house ; but if this inconvenience be prolonged for an unreasonable time, the public have a right to complain, and the party may be indicted for a nuisance. The defendant is not to eke out the inconvenience of his own premises by taking the public highway into his timber yard ; and if the street be narrow, he must remove to a more commodious situation for carrying on his business." Again, in People v. Cunningham (1 Denio, 524), where the defendants, brewers, were in the habit of delivering their slops in the public street to purchasers, and the street was obstructed and ren- dered inconvenient by the carts and teams resorting thither for it and waiting for a load, it was held that the defendants were guilty of a nuisance, and that the consideration that the teams and wagons were not owned by them, or under their control, did not excuse them, they having in effect, by the manner of conduct- 318 THE LAW OF HIGHWAYS, ing their business, invited, these assemblages at that place. The fact that the defendants' business is lawful, does not afford them a justification in annoying the public in transacting it ; it gives them no right to occupy the public highway, so as to* impede the free passage of it by the citizens generally. {Id.) The case of Rex v. Carlisle (6 Carr & Payne, 636), was somewhat analogous to the case last cited. The defendant, who was a bookseller in Fleet street, having been distrained for the non-payment or a church rate, put into one of his windows the eflSgy of a bisliop of the Established Church, under which was written "Spiritual Broker," and into the other window, a man in ordinary dress, under which was written ' ' Temporal Broker," and afterwards added the figure of the devil, through the arm of which was tucked that of the bis- hop. The exhibition attracted a crowd to look at it, so that passengers were obliged to go off the foot-path into the carriage-way, as there was not room for them to walk on the foot-pavement. Parker, J. , admitting that the defendant had a right to do as he chose on his own premises, provided he did nothing to injure or annoy his neighbors, or the public, instructed the jury tbat, if the exhibition caused the foot-way to be ob- structed, so that the public could not pass as they ought to do, this was an indictable nuisance, and that it was not essential that the figures should be libelous, or that the crowd attracted should consist of idle, dis- orderly and dissolute persons. He said, "if a place is situated near a highway, and the defendant do that which causes the persons passing, to be prevented from passing as they ought to do, and besides this, peo- ple are annoyed in the occupation of their houses, this is a nuisance for which the party is indictable." OBSTRUCTIONS AND ENCEOACHMENTS. 319' It is, no doubt, a nuisance to dig a ditch or lay logs. or wood in a highway ; and whosoever sustains an in- jury from such a cause, without any fault of his own, may maintain an action again the author of it. {Har-. low V. Humiston, 6 Oow. 189.) The placing ., of a log at the threshold of a ferry, is. an obstruction in the highway, and any one sustaining damages thereby may recover. {Osborn v. Union Ferry Co. 53 Barh. 629.) It is also a nuisance to. maintain on ones land a stagnant pond, injurious to. the health of his neighbor. {Adams v. Popham, 76. N. T. R. 410.) One travelling on the highway is jus- tified in assuming that it is safe, and where he is in- jured; in consequence of a defect, he may recover. {Weed V. Village of Ballston, 76 N. Y. M. 329.) ^A bridge across the street has been held to be a nuisance. {Knox V. May.or of New Toric, 55 Barb. 404.'N But, all lands within a highway fence are not necessarily subject to the right of way, and where they are not so subject, they may be occupied by the owner, and if' he place an obstruction there and another is injured by it, he is not, therefore, liable, {Id.) Where the road is laid out by the commissioners, the pu blic are entitled to the uninterrupted and free use of the road, to the full width laid out ; and where the road is claimed by the user, the extent of such user deter- mines its width. But the public are entitled to the use- of the road to a greater width than laid out in the one case, or used in the other ; and if a man occupy his lands beyond those limits, without fencing it, and place an obstruction there, he cannot be made liable- to one injured thereby. Any act of an individual done to a highway, though perf orrned on his own soil, if it detraclj from the safety of travellers, is a, ^uJisa^nQe.. Therefore, where the^^ 320 THE LAW OF HIGHWAYS. owner of lands, over which a highway passe?, digs a raceway across the road to conduct water to his mill, he must restore the road to as good and safe condition as it was before the race was built, by building and maintaining a bridge over it, or otherwise ; and if an injury occurs by reason thereof, though he use the utmost care to prevent it, he is, in the absence of gross negligence on the part of tlie party injured, liable for damages, and "the raceway will be adjudged a nuisance. {DygertY. Schenck, 23 Wend. 446.) So a ditch dug in a public highway which, from. the local circum- stances of the country, is seldom or never used but by one or more families, is still a public nuisance, not be- cause any considerable portion of the public is actually affectttd by it, but because it obstructs a passage which all have a right to use. {Lansing v. Smith, 8 Cowen, 152.) Where a coal hole had been made in a sidewalk and was not properly covered — held thnt the lessee of the building is liable, separately or jointly with the lessor for injuries resulting therefrom. {Irvine v. Wood., 51 iV. Y. R. 224.) So, an excavation made adjacent to a highway, renders the owner of the land liable to a traveler who, using ordinary care, falls into it. {Beck V. Carter, 68 N. T. B. 283 ; Wright v. Saunders, 65 Barb. 214.) This principle applies to the tow-path of a canal. {Conklin v. Phcenix Mill Go. 62 Barb. 299.) If a pile of stones has a tendency to frighten hor^es and is of a dangerous character, although "not techni- cally a defect in the highway, the turnpike company can be made liable for damage caused to travelers thereby, after notice of its character and neglect to remove it. {Eggleston v. Columbia Turnpike, If. T. Court of Appeals, Oct. 5, 1880.) Whatever is permitted by a statute which the Legis- OBSTETJCTIONS AND ENCKOACHMENTS. 321 lature is constitutionally competent to pass, is not, in judgment of law, a nuisance. {Leigh v. Westervelt, 2 I>uer, 618 ; Williams v. N. Y. Central R. R. Co. 18 Barh. 222.) Unless there is an excess or irregularity in the exercise of the power conferred, in which case it becomes a public nuisance pro tanto. {Renwick v. Morris, 3 Hill, 621 ; affirmed, 7 Hill, 575.) An insecure wooden awning made for private pur- poses, if unauthorized, is an encroachment on the public street, and a nuisance. {Hume v. Mayor, 74 N. Y. R. 264.) Where a party has obtained permission from a muni- cipal corpoTation to lay gas pipes in a street, he is liable for injuries sustained in consequence of the failure of his servant to restore the street to a safe con- dition. {McCamus v. Citizens'' Gas Light Co. BrooTc- lyn, 40 Barl. 380.) It is unlawful for any person or persons or corpora- tion, to deposit, cast, leave or keep, or cause to be deposited, cast, left or kept, upon or near any highway or route of public travel, either on the land or on the water, any noisome or unwholesome substance, or to establish, maintain, continue or carry on, or cause to be maintained, continued or carried on, upon or near any public highway or route of public travel, either on the land or on the water, any business, trade or manu- facture which is or shall be noisome or detrimental to public health. Any person violating the provisions of this section shall be guilty of a misdemeanor, and, on conviction theieof, shall be punished by a fine of not less than one hundred dollars, or by imprisonment not less than three nor more than six months. (Laws of 1870, chap. 525, § 1.) By the second section of the above law, persons aggrieved are to serve a notice upon persons guilty of 23 322 THE LAW OF HIGHWAYS. violation, when such person must remove the sub- stance or discontinue the manufacture, or in default forfeit the sum of twenty-five dollars for each day's neglect. But the person bringing the action must give bonds, to be approved by a justice of the Supreme Court. Public parades. — By chapter 590, of the Laws of 1872, as amended by chapter 42 of the Laws of 1880, no procession or parade is to interfere with the free passage of cars on railways, and all processions or , parades are forbidden to occupy the streets to the exclusion of other citizens, unless six hours notice has been given to the police, who may lay out the line of march and the width of the column. The national . guard, police and fire departments are excepted. Parades are forbidden on Sunday, excepting funeral processions, in the course of which there shall be nO' music, fireworks, discharge of cannon or firearms, or other disturbing noise, provided that in any military or Grand Army of the Republic funeral, music may be played while escorting the body, but not within one block of a place of worship, when worship is being- celebrated. The penalty is twenty dollars, or an imprisonment of ten days. Any injury to persons through exjjlosion of fire- works in the street, makes "the wiong doer liable. {Gonklin v. Thompson, 29 Barb. 218.) 2. Obstruction of Navigable Rivers. It has been before said {ante p. 17) that a navigable river common to all men, is a highway : and it is gov- erned by. the same rules, so far as obstructions and OBSTRUCTIONS AND ENCEOACHMENTS. 323 . nuisances are concerned, as are highways on the land. All citizens may use it only as a highway for purposes of navigation. They have no right exclusively to occupy any part- of it, by either floating or permanent buildings or obstructions. {Hart v. Mayor of Albany, 9 Wend. 584.) The right of each citizen to use such river as a highway must, everywhere, within reasona- ble limits, accommodate itself to the same right in the public at large. Every unauthorized obstruction of a navigable river is a public nuisance. (See Wood on Nuisances.) Lord Hale, in his treatise De Jure Maris, 9, after stating the clause in magna cTiarta, which directs the removal of nuisances, says : ' ' These nuisances are such as hinder or obstruct the passage of boats : as wiers, piles, choaking up the passage with filth, divert- ing of the river by cuts or trenches, decay of banks, or the like.'; Mr. Hawkins says : It seems certain that it is a common, nuisance to divert part of a public navigable river, whereby the current of it is weakened and made unable to carry vessels of the same burthen as it could before. {1 HawTc. P. C. chap. 75, § 11.) So it is a common nuisance to lay timber in a public river, although the soil* on which it is laid belong to the party, provided it obstruct the necessary intercourse. (3 Bac. Abr. 686.) So, it is unlawful for an individual, without special authority, to construct and moor a floating storehouse or vessel for the purpose of receiv- ing and delivering goods and merchandize in any pub- lic river, or in any port or harbor. Such permanent appropriation and exclusive occupation of a portion of a public river, is an obstruction to its- free and com- mon use, and is indictable as a public nuisance. {Bart 324 THE LAW or HIGHWAYS. V. Mayor of Albany, 9 Wend. 571 ; see also People v. Vand'erbilt, 26 N. T. B. 287.) The erection of a building on the bank of a naviga- ble river, below the line of low water, is not per se a nuisance. ( Wetmore v. Atlantic WhUe Lead Co. 37 Barh. 70.) It is not allowable to permanently anchor a raft of timber in a navigable stream. {Moore v. Jackson, 2 Abb. N. 0. 211.) 3. Encboachment by Fences. ITow removed. — In every case where a highway shall have been laid out, or ascertained, described and en- tered of record in the town clerk's office, and all roads not recorded, which have been or shall have been* used as public highways for twenty years or more, and the same have been, or shall be obstructed in any manner or encroached upon by fences or other- wise, the commissioner or commissioners of high- ways of the town shall, if in his or their opinion it be deemed necessary, order such obstructions or encroachments to ■ be removed, so that such highway may be of breadth originally intended. The com- missioner or commissioners making the order shall cause the same to be reduced to writing and signed, and shall also give notice in writing to the occupant or owner of the land to remove such obstructions or en- croachments within sixty days. Every such order and notice shall specify the breadth of the road originally intended, the extent of the obstruction or encroach- ment, and the place or places where the same shall be. (1 a. S. 521, § 103, as amended by Laws of 1878, chap. * So In the statute. OBSTRUCTIONS AND ENCROACHMENTS. 325 245 ; for forms of order and notice, see Appendix Nos. 82 and 83.) Wo person shall be required to remove any fence under the prieceding provision, except between the first day of April and the first day of November in any year. (1 Ji. S. 522, § 109.) Service of notice. — Where a statute prescribes a no- tice as a precedent to doing an act, and does not pre- scribe the mode of giving it, personal service is neces- sary. {McDermott v. Board of Police., 5 Abb. Pr. 422; Pathbimv. Acker, 18 Barb. 393.) Penalty for not removing. — If such removal shall not be made within the time above mentioned, the said commissioner or commissioners may summarily remove, or cause to be removed, such obstructions or encroach- ments, and the owner or occupant of the premises to whom the notice shall be given, shall pay to siich cominissioner or commissioners all reasonable charges therefor, and shall forfeit the sum of fifty cents fOr each day that such obstruction or encroachments shall remain unremoved, after the expiration of the time mentioned in said notice, which shall be collected by suit in justice's court, and shall be applied to the im- provement of the roads and bridges of said town. (1 R. . S. 522, § 104, as amended by Laws of 1878, chap. 245.) The statute does not abrogate the common law remedy of abatement of nuisance by the mere act of individuals, or abolish the proceeding by indictment. ( Wetmore v. Tracy, 14 Wend. 250.) Proceedings. — To bring a person in default for not obeying the order of the commissioners, and render him liable for the penalties for an encroachment on 326 THE LAW OF HIGHWAYS. the highways, it is necessary that the commissioners should meet, deliberate and decide ori the alleged en- croachment, and give notice to the party to remove his fences with sixty days, which notice ought to state specially the breadth of the road originally intended, the extent of the encroachment, and the place or places where, so that the party may know how to obey the order for removing his fence. {Spicer v. Slade, 9 John. 359.) When the encroachment is not denied, all the com- missioners must confer together in regard to making an order for its removal, or be duly notified to attend a meeting of the commissioners for the purpose of con- ferring thereon and the majority may act (1 JR. S. 525, § 125) ; but when the encroachment is denied, and the fact is to be enquired into by a jury, it was held, in an early case, that one of the commissioners only may act, and make complaint to a justice of the peace ; or that, at least, a want of joint consultation of all the commissioners will not vitiate an inquest subsequently found. The safer course is, however, for all the com- missioners to meet and deliberate, or to have notice to meet and deliberate on the matter, before the notice is given in every case. And in Fitch v. Commissioners of Kirkland (22 Wend. 132), it was held that an order for the removal of fences, made by two commissioners in the case of an encroachment on a highway was void, it not appear- ing on the face of the order that the third commis- sioner was duly notified to attend a meeting of the board for the purpose of deliberating on the subject of the order. A complainant is not estopped from disputing the validity of an order of the commissioners, directing removal of his fence as an encroachment, by failing to OBSTKUCTIONS AKD ENCROACHMENTS. 327 serve a written notice denying such, encroachment. {Borries v. Horton, 16 Hun, 139.) The breadth of the road originally intended, the ex- tent of the encroachment, and the place or places in which the same shall be, must be given with precision. In Mott V. Gommissioners of Rush (2 Hill, 472,) the court held it to be an incurable defect that the notice and order omitted to specify the original breadth of the road, and the extent and places of the encroach- ment. The order and notice in that case described the encroachments as being " of the average width of one rod or upwards." It was insufficient ; " The statute," says the court, ' ' is very explicit, and for an obvious reason, viz, : to enable the party, if he see lit, 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. The commissioners are required to put the party in possession of all the particulars of the ■encroachment necessary to enable him to go upon the ground, where it is alleged to exist, and remove it at once. (For form of order and notice, see Appendix Nos. 82, 83, 84 ) Where proceedings to remove an encroachment of fences upon a highway are instituted under the provi- sions of the R. S. as amended by chapter 125 of 1870, the notice must specify the breadth the highway was originally intended to have been. {Gook v. Goml, 1.8 Hun, 288.) How width to be ascertained. — The commissioners are to ascertain the width from the survey of the road recorded with the order laying it out. In Talmage v. Hunttlng (29 N. Y. R. 447), which was an action to recover penalties for encroachments, alleged to have 328 THE LAW OF HIGHWATS. occurred on a highway, brought under an act regula- ting highways in the counties of Suffolk, Kings and Queens, under which act the provision, with regard to encroachments, is not limited to laid out highways, the court held that, before it can be determined whether a particular highway has been encroached upon, its limits and boundaries must be ascertained and determined in some mode prescribed by law ; and that the jury balled to determine the disputed question of an encroachment, has no power to determine the question of width and boundaries. Proof of laying out. — Althoiigh it is essential that the road shall have been laid out and recorded, or used as a highway for twenty years, yet it is not necessary that the commissioners prove all the proceedings pre- liminary to the laying out of the road. It will be suf- ficient for them to show the record thereof, and that it was opened and used as a public highway. {Sage v. Barnes, 9 John. 365 ; GJiapman v. Gates, 46 Barb. 313 ; Marvin v. Pardee, 64 Barb. 353.) Where highway is discontinued. — If a highway is obstructed by a fence, and the commissioners discon- continue the highway, the fence thereupon ceases to be a public nuisance, and an appeal from the order discontinuing such highway does not make the fence illegal. {DraJce v. Rogers, 3 Hill, 604.) But the owner of the land cannot himself work an abandon- ment of a highway by obstructing it ; the public alone can do that by a non-user'for twenty yeai'S, or by t^uch an entire and absolute abandonment as . can leave, under the circumstances, no question of intent. {Ams- bey v. Hinds, 46 Barb. 622.) OBSTRUCTIONS AND ENCROACHMENTS. 329 How penalty collected. — It is provided that tlie pen- alties and charges for removing the fences shall be " collected in the same manner provided in the forty- fifth section of said title." This is evidently a mis- take, for the forty-fifth section does not provide any manner for collecting penalties. The penalties should be collected by bringing an action before a justice of the peace in the same manner that other actions are cotamenced. See as to the man- ner in which commissioners are to sue, ante p. 136 et seq. Plea of title — Some doubt has existed in the courts as to vs^iiether a plea of title by a defendant sued for penalties for encroaching on a highway, ousted the justice of jurisdiction. In Parker v. Yan Souten (7 Wend. 145), it was held that a plea of title was no bar to an action by commissioners for an obstruction of a highway, inasmuch as the public did not claim title, but only an easement of passage. But in Randall v. Grandall (6 Hill, 342), it was held that the question of the right of way, either public or private, is a ques- tion of title to real property which a justice of the peace has no jurisdiction to try. This case was cited in Little v. Denn (3 Abb. N. S. 235), which was a case in the Court of Appeals, and it was there said that the question was well settled. However, if the defend- ant wishes to take objection to the jurisdiction of the justice on the grounds that the question of right of way involves a question of title, he must, at the time of answering, deliver the undertaking prescribed by section fifty-six of the Code (§ 2952 of Code of Civil Procedure) ; and if he do not deliver such undertaking, he is precluded from drawing the title or right of way in question in his defence. (Id.) 330 THE LAW OF HIGHWAYS. But though the defendant, by omitting to give the requisite undertaking, has precluded himself from drawing the right of way in question, he has the right to introduce evidence to show that the obstruction complained of, is not within the boundaries of the highway. This does not involve the question of title. {Id.) Where encroachment is denied. — If the occupant to whom notice is given shall, within five days, deny such encroachment, the commissioners, or some one of them, shall apply to any justice of the peace of the county, for a precept directed to any constable of the town, to summon twelve freeholders thereof, to meet at a certain day and place, to be specified in such pre- cept, and not less than four days after the issuing thereof, to inquire into the premises. The constable to whom such precept shall be directed, shall give at least three days' notice to the commissioners of high^ ways of the town, and to the occupant of the land, of the time and place at which such freeholders are to meet. (1 H. S. 522, § 105 ; for forms herein, see Ap- pendix No. 85.) The denial of the occupant must be in writing. {Lane v. Carp, 19 Barb. 637.) The application of the commissioners to the justice shf)uld also be in writing. The statute, by freeholders, means such as have the legal title to real estate — such as are freeholders with- out a proceeding in court to make or declare them so ; a legal title is requisite. (People v. Hynds, 30 N. Y. It. 472.)' See further as to the freeholders, ante Chap. VIII, sub. 6. It was held in Pugsley v. Anderson (3 Wend. 468), that the justice acted ministerially in these proceed- ings, and had no duty to perform except to issue the OBSTBUCTIONS AND ENCROACHMENTS. 331 precept for the jury, and to swear the jury and wit- nesses ; and that he had no right to decide upon the qualifications of the jurors. But by the act of 1862 (chap. 243, § 1), it is "provided that the justice shall preside at the trial in the same manner as upon trial of an issue joined in a civil action commenced before him, and that he shall have the power, and it shall be his duty to decide as to the competency of the jurors, the competency and admissibility of evidence, and all other questions which may arise before him in the same manner, and with the like effect, as upon a jury trial in civil actions before him. The justice should not annex to the precept the list of jurors to be sum- moned. If he should do so, the proceeding would be irregular, but the irregularity is waived by appearing and taking no objection to the jury on that ground. {Mott V. Commissioner of RusTi, 2 Hill, 472.) Proceedings on trial. — On the day specified in the precept, the jury so summoned shall be sworn by such justice, well and truly to inquire whether any such encroachment has been made and by whom ; such wit- nesses 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. (1 R. S. 522, § 106 ; for form of oath, see Appendix No. 86.) Upon the hearing before the jury, as provided in the above section, the justice who has issued the precept to such A party, shall preside at the trial in the same manner as upon the trial of an issue joined in a civil action commenced before him ; six of the jurors sum- moned shall be drawn and empanneled in the same man- ner as upon trial by jury in civil actions before him, and he shall have the power, and it shall be his duty 332 THE LAW OF HIGHWAYS. to decide as to the competency of Jiirors, the compe- tency and admissibility of evidence, and all other ques- tions which may arise before him, in the same manner and with the like effect as upon a jury trial in civil ac- tions before him ; and such justice shall adjust and de- termine the cost of such inquiry, and in case the jury shall find an encroachment, he shall render and docket a judgment to that effect, and for such costs against the person or persons who shall have denied such en- croachment ; in case the jury find no encroachment, he shall render and docket a judgment to that effect against the commissioner or commissioners prosecu- ting the proceedings, and also for such costs, together with the damages, if any, which may have been fixed by the jury, and payment thereof shall be enforced by such justice, as in other cases of judgment rendered by him. (Laws of 1862, chap. 243, § 1.) The judgment finding that an encroachment has been made, should state the particulars of the encroach- ment, so as to guide the party in removing it. {Fitch \. Commissioners of Kirlcland, 22 Wend. ^32.) Should the jury disagree, the justice may discharge them and issue a new process to summon another jury. {People V. Cortelyou, 36 Barb. 164.) It was provided by sections 107, 108 of the Revised Statutes (1 a. S. 522), that if the jury- find that an en- croachment has been made, they shall make and sub- scribe a certificate, in Avriting, stating the particulars of such encroachment, and by whom made ; which shall be filed in the office of the town clerk. The occupant of the land, whether such encroachment shall have been made by him or by any former occupant, shall remove his fences within sixty days after the filing of such certificate, under the penalty provided in the one hundred and fourth section of this title OBSTEUCTIONS AND ENCROACHMENTS. 333 (cited above). He shall also pay the costs of such in- quiry ; and if the same shall not be paid within ten days, the justice shall issue a warrant for the collection thereof in the manner provided in the forty-third sec- tion of this title. 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 costs thereof, shall be paid by the commis- sioners, and shall be charged in their favor against the town by which they shall have been elected. It is provided by the act of 1862, the first section of which is above cited, that the payment of the judg- ment rendered by the justice, in case of an encroach- ments, shall be collected in the same manner as in other cases of judgment rendered by him, so that the provisions in section one hundred and seven, above cited, in relation to the collection of the judgment, is superseded. But in other respects there does not ap- pear to be anything in the act of 1862 inconsistent "with the sections last cited. The jury should make and subscribe a certificate in writing, stating the particulars of the encroachment, and by whom made, and the same should be filed in the town clerk's oflJce. The occupant has sixty days to remove the fence after the filing of such certificate. RigM of appeal. —The person or party against whom such judgment shall be rendered, may, within sixty days after filing the certificate of the jury, appeal from the finding and judgment to the cqunty court of the same county ; such appeal shall be made by the ser- vice, within twenty days after the docketing of said judgment, of notice of appeal upon the justice and 334 THE LAW OF HIGHWAYS. upon the successful party or parties, or one of them, stating the grounds of such appeal. It shall be the duty of such justice, in his return to such appeal, to embrace copies of a,ll the papers made and served in the proceeding prior to issuing the precept for such jury, and all evidence and proceedings before him, together with the finding of the jury and judgment entered thereon. All the provisions of title eleven, chapters third and fifth of the Code of Procedure are extended to such appeals, so far as the same are appli- cable thereto. (Laws 1862, chap. 243, § 2.) Title eleven, chapters third and fifth of the Code related to "appeals to the Supreme Court from an inferior court, and appeals to the Court of Common Pleas for the city and county of New York, or to a County Court from an inferior court, ' ' and are embodied in the Code of Civil Procedure, in sections 1340 to 1355 inclusive, and sections 3044 to 3073 inclusive — so that appeals from the judgment in case of alleged encroach- ments, as above provided, are governed by the same rules, and are to be taken in the same manner as in civil cases. . Judgvient on appeal. — In case the decision of the jury finding an encroachment shall be affirmed by the Appellate Court, such court, in addition to the cost now allowed by law, may, in its discretion, order judg- ment against the appellant for the penalties provided by section one hundred and four of article one, title one, chapter sixteen, part first, of the Revised Statute aforesaid (above cited), for such period as shall inter- vene between the time fixed for the removal of fences, as provided by section one hjindred and seven of the said article, title and chapter (above cited), and the decision of such appeal ; and in case of the continued OBSTRUCTIONS AND ENCKOACHMEKTS. 335 neglect or refusal of the occupant, after judgment, to make such removal, the court rendering judgment may, by order, from time to time, enforce the additional penalties incurred, or may provide for the removal of , such fences at the expense of the occupant ; payment of such expense to be enforced by order. Such appli- cation to be made according to the usual practice of the court. (Laws 1862, chap. 243, § 3.) WTien fences to he removed. — No person shall be required to remove any fence under the preceding pro- visions of this article, except between the first day of April and the first day of November, in any year. (1 R. S. 522, § 109.) 4. Fallen Trees to be Removed. If any tree shall fall, oi" be fallen, by any person, from any enclosed land into any highway, any pers6n may give notice to the occupant of the land from which such tree shall have fallen, to remove the same within two days. If such tree shall not be removed within that time, but shall continue in such highway, the oc- cupant of the land shal 1 forfeit the sum of fifty cents for every day thereafter, until such tree shall be removed. (1 B. S. 523, § 119.) Penalty for falling trees. — In case any person shall cut down any tree on land not occupied by him, so that it shall fall into any highway, river or stream, unless by order and consent of the occupant, the person so ^ offending shall forfeit, to such occupant, the sum of one dollar for every tree so fallen, and the like sum for every day the same shall remain in such highway, river or stream, (1 R. 8. 523, § 111.) 336 THE LAW OF HIGHWAYS. Removing trees from streams. — Whoever shall cut, or cause to be cut down, any tree, so that the same shall faU 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. (1 R. S. 523, § 112.) The Legislature has, from time to time, declared certain rivers and streams public highways, and refer- ence must be had to the several acts. They would occupy too much space to enumerate them here. All rivers, where the tide ebbs and flows, are public high- Ways, without an act of the Legislature. (See ante p. 17.) jiVees may he planted. — The statute has empowered owners of land adjoining a highway to plant shade trees thereon. 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 set in regular rows, at a distance of at least six feet from each other. Who- ever shall cut down, destroy or injure any tree that has been, or shall be so planted or set out, shall be lia- ble, in damages, to the owner of such adjoining land. (1 R. S. 525, § 127.) By the act of 1863, chapter 93, as amended by chap- ter 570 of the Laws of 1847, it' is provided that all persons owning land fronting upon any highway (ex- cept in cities and incorporated villages), make side- walks and plant trees along the road side. Such side- walk, with shade trees, shall not extend more than six feet in width from the outer line of the highway, where the highway is three roads wide or less. Where OBSTRTTCTIOKS AND ENCROACHMENTS. 337 it is over three rods the trees may be extended into the highway one-fifth of the width of the road, but not over eleven feet from the edge thereof. A railing may be erected, and injuries to trees by driving cattle is made a misdemeanor. (For full text of this law, see chap. XV.) By the Laws of 1875, chapter 215, it is unlawful for any person or persons to hitch any horse or other animal to, or leave the same standing near enough to, to injure any fruit or forest tree that has been transplanted or used as a shade or ornamental tree around any school- house, church or public building, or along any public highway. 5. Swinging Gates in Highway. No swinging or other gates shall be allowed on any public highway, laid out by virtue of this title, or which has heretofore been laid out, other than such public highways as run through lands liable to be overflowed by the waters of the adjacent rivers or streams, in such a manner as to remove the fences thereon. (1 B. S. 523, § 113.) How erected and preserved. — Such gate shall be elected and kept in good repair by the overseers of highways of the town, at the proper costs and charges of the occupants of the land, for whose benefit the same shall be erected. {Id. § 114.) Expenses, hy whom paid. — If more than one gate shall be erected, and the intermediate land between the gates at the extremities of such lands shaU be in the occupation of more than one person benefited by such gates, the whole charge of erecting and keeping 23 338 THE LAW OF HIGHWAYS. the same in repair shall be borne by all the occupants benefited thereby, in proportion to the extent of land each occupies adjoining the highway, between the gates and the extremities aforesaid. {Id. % 115.) The overseer of every road district in which such gates shall be, shall, on or before the first day of No- vember, in every year, make out and file with the town clerk, a statement of the charges incurred in the erec- tion or repairing of sucb 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 state- ment shall also contain an apportionment thereof between such persons, stating the amount to be paid by each. (Id. § 116.) The overseer shall, within ten days after filing the statement, demand of every person bound to pay such charges, or to contribute thereto, the sum due from him according to such statement, and if any person shall refuse or neglect to pay such moneys within six days after demand, it shall be the duty of the overseer to make complaint to a justice of the peace of the town, and the like proceeding shall be had for the recovery of such money, as in the recovery of fines for refusing- or neglecting to work on the highways. (I R. S. 524, § 117.) Gates to be closed. — The commissioners of highways shall fUe an account of such gates in the town clerk' s office ; and if any person shall open any such gate,, and shall not, immediately after having passed the same, close it, or shall wilfully or unnecessarily ride over any of the grounds adjoining the road on which such gates shall be permitted, he shall forfeit to the party injured treble damages {Id. § 118.) obstructions and encroachments. 339 6. IE'enalties for Obstruction under the Statute. Whoever shall obstruct any highway, or shall fill up or place aiay obstruction in any ditch constructed for draining the water from any highway, shall forfeit for every such offence the sum of five dollars. (1 Ji. S. 521, § 102.) The commissioners of highways have no power to bring an action to enjoin the construction of a perma- nent obstruction in the highway. (GoyTcendall v. Dur- kee, I'd Hun, MO.) Treble damages. — It also provided, that whoever shall injure any highway, by obstructing 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, forfeit treble damages. (1 R. 8. 526, § 130.) These provisions are merely cumulative. The first affords no redress for private injury — but a party injured may waive the treble damages, and sue for single damages. {DygertY Schenek, 23 Wend. 451.) This is a penalty recoverable by the commissioners. They cannot maintain an action on the case for dama- ges done the road ; their remedy is by indictment, summary abatement; or action for the penalty ; pri- vate remedies are confined to the owner of the soil, or persons who have sustained a particular injury. {Cor- nell y. Butternuts^ &c. Turnpike Co., 25 Wend. 368.) On what hig7iways.—1h.e penalty of five dollars and that of triple damages are not limited to obstructions of laid out highways, but apply to all public highways, whether acquired by dedication, user for twenty years, or by laying, out under the statute. After a road has 340 THE LAW OP HIGHWAYS. become a public highway by user, as such for twenty years or more, a person obstructing it incurs a penalty for so doing, although the commissioners have not caused the road to be ascertained, described and en- tered of record. The commissioners can maintain an action to recover the penalty of five dollars for such obstruction. {JDeoenpeck v. Lambert, 44 Barb. 596.) But it does not apply to private roads. {Fowler v. Lansing, 9 John. 349.) As to encroachment by fences.— li the encroachment by fences upon the highway is of such a nature that no one using the highway is incommoded, then it is no nuisance, and cannot be summarily abated either by the commissioners or others. {Griffith v. McCullum, 46 Barb. 561 ; McCarthy v. Syracuse, 46 JST. T. B. 194.) Nor does it appear to be an obstruction within the meaning of the statutes cited above. Ample pro- vision has been made for removing fences that encroach on highways, and the manner provided should be strictly followed. However, where a fence is an ob- struction to travel, it may be abated or indicted. ( Wet- more y. Tracy, 14: Wend. 250.) The statute providing penalties for obstructions and encroachments, has not taken away the common law remedies of abatement and indictment. {Id.) Penalties, how recovered. — All penalties or forfeit- ures given in this title, and not otherwise provided for, shall be recovered by the commissioners of highways of the town in which the ofiEence shall be committed ; and when recovered, shall be applied by them in im- proving the roads and bridges in the town. (1 R. 8. 526, § 131.) The commissioners cannot maintain an action in their OBSTETJCTIONS AND ENOEOACHMBNTS. 341 official name or title, but must use their individual names, annexing their official title thus, "A, B and C, commissioners of highways of the town of Pittstowu, in the county of Rensselaer, plaintiffs." There must also be an allegation in the complaint, setting forth their official character. (See further herein, ante, p. 136.) The commissioners of two towns cannot unite as plaintiffs in an action to recover a penalty or forfeiture for an encroachment, upon a highway laid out. upon the line between their two towns. {Bradley v. Blair, 17 Barh. 480.) 7. Noxious Weeds to be Destroyed. It shall be the duty of every person or corporation, owning or occupying under a lease for one or more years, any cultivated or inclosed lands abutting upon any highway, to cause all noxious weeds, briars and brush, growing upon said lands, within the bounds of said highway, to be cut or destroyed between the fif- teenth day of June, and the first day of July, and between the fifteenth day of August and the first day of September, in each and every year. But boards of supervisors may fix a different period or periods, for such cutting or destruction in their respective counties. This section shall not be construed to restrict any of the powers heretofore conferred upon boards of super- visors. (Laws 1878, chap. 49, § 1.) It shall be unlawful for any person to place or cause to be placed any noxious weeds, or the seeds of such weeds, within the bounds of any public highway. {Id. § 2.) Any willful neglect or refusal to comply with the provisions of section one of this act, or any willful 342 THE LAW OF HIGHWAYS. violation of section two of this act, shall subject the person or corporation so offending to a penalty of ten dollars and costs in and for each road district in which any of such provisions shall be violated, to be sued for by the commissioner or commissioners of high- ways of the town wherein said road districts shall be situate, or by the street commissioners of villages, when such village constitutes a separate road district, and recovered before any justice of the peace having jurisdiction ; said fine when collected, to be paid into the highway fund of such town or village. {Id. § 3.) It shall be the duty of commissioners of highways of towns or street commissioner of villages to prosecute every person or corporation violating any of the pro- visions of this act in their respective towns or villages, and to include in each annual report of such commis- sioners a detailed statement of all fines recovered under the provisions of this act. {Id. § 4.) 8. ABATEMKNT or OBSTKrCTION. The common law remedy for a nuisance or obstruc- tion of a highway is, by abatement or indictment ; a nuisance in the public highway, may be abated, that is, removed or destroyed by any individual who wants to use the highway in a lawful manner, and is injured or incommoded by such nuisance. {OriffitJi v. McCul- lum, 46 Barb. 561 ; see also ^ar^ v. Mayor of Albany, 8 Paige, 213 ; 9 Wend. 571 ; Denning v. Roome, 6 id. 651; Wetmore v. Tracy, 14 id. 250.) But this right of abatement does not extend to the removal of every encroachment upon a highway, unless such en- croachment annoys and obstructs its lawful use. Every encroachment is not a nuisance. A nuisance must be something that annoys the public. {Griffith OBSTRUCTIONS AND ENCROACHMENTS. 343 V. McCullum, supra; Harrower v. Bitson, dl Barb. 301 ; HopMns v. GromMe, 4 N. Hamp. 520 ; Burnham, V. HotchTciss, 14 Conn. 311 ; CoyJcendall v. Durlcee, 13 ^tiw, 260.) Thus, if the encroachment of a fence on. a highway is of such a nature that no one, in using the highway, is incommoded by it, then it is not a nui- sance and cannot be abated. {Griffith v. McOullum, supra.) The same principle was decided in Harrower V. Bitson {supra). In Burnham, v. HotchJciss (supra), the court held that whether or not a given obstruction is a nuisance, is a question of fact for the Jury ; and that an abatement is not justified unless the public travel is, by reason thereof, actually obstructed, hin- dered or endangered ; and the more recent decisions in this State are in harmony with those views. W7io may abate obstructions. — It seems, also, to be fully established, by recent cases, that if there be a nuisance in a public highway, a private individual cannot, of his own authority, abate it, unless it does him a special injuty ; a public nuisance becomes a pri- vate one to him who is specially, and in some particular way, inconvenienced thereby, as in the case of a gate across a highway, which prevents a traveler from pass- ing, and which he may, therefore, throw down. {Griffith V. McCullum, 46 Barb. 561 ; Harrower v. Bitson, 37 id. 301, and cases cited ; Cook v. Harris, 61 N. T. B. 448.) The abatement by an individual must be limited by its necessity, and no wanton or unnecessary injury must be committed. {Id.) But, although one injured may abate a common nuisance obstructing a highway, and remove the materials ; yet, he cannot convert them to his own use. (1 Hawk. P C. 76, § 187.) And the right seems, also, to be qualified by the exception, that it cannot lawfully be exerted if its exercise in- 344 THE LAW OF HIGHWAYS, volve a breach of the peace. {Day v. Bay^ 4 Mary- land, 262.) Where the commissioners change the course of a sluiceway, and throw the water on de- fendant's land, he may peaceably abate the nuisance. {Thompson v. Allen, 7 Lans. 459.) 9. Remedy by Indictment. Indictment is the appropriate remedy against indi- viduals for positive obstructions of a highway. And whatever may be the law in regard to the abatement, it would seem that the author of a nuisance within the limits of a highway, is liable to indictment. Whether such nuisance actually obstructs the public travel or not, the public have a right to the entire width of the road, a right of passage in the road to its utmost extent, unobstructed by any impediment ; and whoever puts any permanent or habitual obstruction therein is indictable, although there be room enough left for car- riages to pass. (See Harrower v. Bitson, 37 Barb. 301 ; Griffith v. McCullum, 46 id. 561, and cases cited.) Where such obstruction exists, both the party who created it and the party who continues its use or main- tenance, are liable to indictment. (1 Hawk. P. C. chap. 76, § 167 ; Bex. v. Stoughton, 2 Saund. 158, note; Brown v. Cayuga R. R. Co. 12 N. Y. R. 486.) And it is no defence for a master or employer, that a nuisance is caused by the acts of his servants, if such acts are done in the course of their employment ; nor, on the other hand, is it any defence for the party causing the nuisance, that he was only acting as an agent or overseer for another. {State v. Bell, 6 Porter {Ala.) R. 365.) Nor is it any defence that the teams and carts that obstruct the highway are not owned by the defendant, OBSTRUCTIONS AND ENCKOACHMENTS. 345 • nor under Ms control, provided the gathering of the teams and carts at the place is caused by the manner in which the defendants conduct their business. {Peo- ple V. Cunningham, 1 Denio, 524. ) So a party cannot defend an indictment for nuisance by showing its con- tinued existence for such a length of time as would have established a prescription against individuals. {Id. Mills V. Hall, 9 Wend. 315.) . Of commissioners — The commissioners of highways may be indicted for neglect to repair the roads, where they have the necessary funds in their hands ; and the having of such funds should be alleged in the indict- ment. In the absence of such allegation the indictment is defective. {People v. Adsit, 2 Hill, 619 ; 4 id. 630.) And an indictment against a commissioner or overseer of highways ought to state when he was elected, when his office" commencf^d, and when it terminated, that he was in the oflBce during the period complained of, and that the road was in his district. {State v. Hageman, 1 Green [N. J.J ^.314.) The indictment should also specify the particular road, or parts of roads, suffered to be but of repair. The object of a prosecution by indictment for the non-repair of a highway, is not the punishment of the defendant, but the repair of the highway ; and, therefore, to authorize a conviction, it must be shown that the road continued out of repair, down to the time of the finding of the indictment. {People V. Branchport and Penn Tan Plankroad Co. 6 Park, 604.) 10. Actions fok Special Damages. Although it is a general rule that a private action cannot be maihtained for a public injury, as for acorn- 346 THE LAW OF HIGHWAYS. mon nuisance, yet, if an individnal suffer a more ■ special injury than any other from such nuisance, lie may have a separate action therefor. {Vin. Abr. TitcMmin Common D. 2 ; 1 Coke Inst. 56, a ; M>/ers V. Malcolm, 6 Jlill, 292, and cases cited ; Lansing v. Smith, 4 Wend. 9 ; Yan Brunt \. AJiearn. 13 Hun, 388.) The foundation of every such action is the special damage. The nuisance per se gives no cause of action. It is strictly analagous to an action of slander for words not actionable in themselves, or an action by a master for the beating of his servant, or for a parent for the debauching of his daughter. In all these cases, the gist of the complaint is special damages. It is that, and that alone, which entitles the plaintiff to recover. {Lansing v. Smiflt, 8 Coio. 153.) It appears to be pretty conclusively settled, that the special injury resulting from a public nuisance which will sustain a private action, must be peculiar to the plaintiff, and not common tn him and many others ; if it operates equally, or in the same manner upon many individuals constituting a particular class, though a very small portion of the community, it is not a special damage to each within the meaning of the rule. {Lan- sing V. Smith, 8 Cow. 146 ; Butler v. Kent, 19 Jolin. 223 ; Pierce v. Bart, 7 Cow. 609 ; Hills v. Hall, 9 Wend. 315 ; Dougherty v. Bunting, 1 Sandf. 1.) In Lansing v. Smith, supra, Mr. Justice Southek- LAND, gave the subject a most careful and exhaustive examination, citing and distinguishing the principal English and American cases, and lie came to the con- clusion above stated. The judgment in the case was in accordance with those views, and it was affirmed by the Court of Errors (4 Wend. 9), although on other grounds. The chancellor who delivered the controU- OBSTEUCTIONS AND ENCEOACHMENTS. 347 ing opinion in the latter court was, however, of the opinion that every individual who receives actual dam- age from a nuisance, may maintain a private action for his own injury, although there are many others in the same situation ; and his opinion was approved in Tlie First Baptist Church v. Schenectady^ &c., R. R. Co. (5 Barb. 79) ; see, however. First Baptist Church V. Utica, &c., R. R. Co. (6 Barb. 313.) In a recent case tlie principle that there must be some special damage to the plaintiff, not sustained by the rest of the community, to enable him to maintain the action, was affirmed. {Fort Plain Bridge, Co. v. Smith, 30 N. Y. R. 44.) An individxTal who receives a bodily hurt, or suffers a damage to his horse or carriage in consequence of a direct collision with an obstruction in the highway, is specially damnified, and may maintain an action against the author of the obstruction. But there are cases in which it is not easy to distin- guish the damage which is peculiar to the individual, from that which is common to him, with the rest of the public. It has been held that the being put to the necessity of going a circuitous route, or the being de- layed on a Journey by which some important affair is neglected, is not sufficient of itself to warrant the action. {Pierce v. Dart, 7 Cow. 6U9, and cases there cited.) So the construction of a basin and erections in a river, whereby the docks, etc., owned by indi- viduals above, were rendered inaccessable or less easy of approach, does not authorize a private action at the suit of one of the dock owners, though he should show his share of the common injury to be greater than that of the others. {Lansing v. Smith, 8 Cow. 146.) So when the nuisance consists in maintaining a pile of wood, on the. street constituting the bulkhead in front 348 THE LAW OF HIGHWAYS. of the plaintiff's store house, injury to the rental of the store house, by reason of such nuisance, is an injury common to all other property in the neighbor- hood, and will not sustain a private action. {Doug- herty V. Bunting, 1 Sand/ 1.) But where the plaintiff declared that, before and at the time of committing the grievance, he was navigat- ing his barges, laden with goods, along a public navi- gable creek, and that defendant wrongfully moored a barge across and kept the same so moored from thence hitherto, and thereby obstructed the public navigable creek, and prevented the plaintiff from navigating his ^jarges so laden, whereby the plaintiff was obliged to convey his goods a great distance over land, and was put to trouble and expense in the carriage of his goods over land. It was decided that this was such a special damage as would silstain an action. {Rose v. Miles, 4 M. & S.-10\.) But, though the plaintiff must sustain some special injury to warrant an action, it need not be large dam- age. Trifling damages are sufficient, as if he oe de- tained on his way, for the time spent in abating. {Pierce v. Dart, 7 Cow. 609.) In order to sustain a private action for sjjecial dam- ages, it must appear that the plaintiff has not contrib- uted to the injury, by his own fault, or by want of ordinary care. But a person travelling on a highway is, as a general rule, justified in assuming that it is safe ; and where he is injured in consequence of a defect therein, the fact that he had previous know- ledge of the existence of the defect does not per se establish negligence on his part. ( Weed v. Village of Ballston Spa, 76 JV. Y. R. 329.) The utmost care, on the part of the constructor of the nuisance, will not pro- tect him, if the injury happen, without the gross care- OBSTRUCTIONS AND ENCK0ACHMENT8. 349 lessness on the side of the sufferer. {Dygert v. ScTiencTc, 23 Wend. 447.) If, however, the injury be such as could not have been avoided by the exercise of ordinary care, or was wantonly caused by the de- fendant, it would seem that the plaintiff, though negli- gent, is entitled to recover. {Bridge v. Grand Junc- tion R. R. Co., ^ M. & W. 244 ; Davis v. Mann, 10 M. & W. 645.) Where commissioners of highways, in constructing an embankment upon a highway, omit to put therein a sufficient culvert to carry off the surface water from adjoining lands, their successors in office are not liable in a private suit of the owner for injuries arising from the accumulation of water upon the lands caused by the embankment. {Gould v. Booth, 66 JV. T. R. 62.) The owner is liable where his servant leaves a barri- cade without lights, and the plaintiff while driving along the .street on a dark night, in avoiding the barri- cade strikes against a post and injures his wagon. {Baxter v. Warner, 6 Hun, 585.) In such a case plaintiff is entitled to recover expenses incident to ill- ness, value of his time, a fair compensation for his physical and mental sufferings, and for any perma- nent reduction of his power to earn money. {Brink- water V. Dinsmore, 16 Hun, 250.) 350 THE LAW OF HIGHWAYS. CHAPTER XIII. BRIDGES. 1. Erection and repair. 2. Money, how provided for repair. 3. Where bridge is damaged or destroyed. 4. Bridges between adjoining towns, how repaired. 5. Toll bridges. 6. Bridge companies, how Intorpornted. 7. Bridges over canals. 1. Erection and Repair. We have already seen {ante, p. 11) that a public bridge common to all people is a public highway, and governed by the same principles of the common law, which apply to highways in general. The general rules as to what bridges are public highways, and as to the dedication of bridges to public use, have been before given, and need not be repeated here. (See ante, p. 11, et seq., and^. 66.) Towns charged with repair. — By the common law of England, the duty of repairing bridges rested upon the county, where no private person or other body was specially charged v\dth that duty. The charge was upon the whole county, because bridges were re- garded as for the common good and ease of the whole county. {Hill v. Supervisors of Livingston, 12 N. Y. JR. 52; I Hawk. P. C. chap. 77, § 1.) But this rule of the common law was never adopted in this State. Our statutory system has committed the care and reparation of highways, including bridges to town offi- BKIDGE8. 351 cers, and has introduced the primary responsibility of towns in respect to the maintenance thereof. The commissioners of highways in the several towns have the care and superintendence of bridges therein, and it is their duty to cause the bridges over streams inter- secting highways to be kept in repair. {Id.) In the abeence of express legislative enactment, a town has no power to enter into a contract for the building of a bridge. {Donnelly v. Town of Ossining, 18 Hun, 352.) Powers qf Supervisors. — By chapter 482 of the Laws of 1875, further powers are conferred on the boards of supervisors in the several counties of the State, except in cities whose boundaries are the same as those of the county, to authorize the location, change of location, and construction or any bridge (except on the Hudson river below Waterford, and on the East river, or over the waters forming the boundaries of the State), which shall be applied for by any town or towns jointly, or by any corporation formed pursuant to the general laws of the State, or by any corporation or individual for private purposes ; and in the case of a public bridge erected by a corporation, to establish the rates of toll to be collected for crossing such bridge. But in every case where any such bridge is to cross a navi- gable stream or water, full pi-ovision shall be made in the resolution or permission authorizing the same, for the erection and maintenance of a suitable draw to prevent any impeding of tlie navigation of such stream or water, and in the case of a private bridge, provision shall be made that the draw shall be kept open, as may be required, to permit all vessels to pass without loss of headway. Where any bridge shall be on a stream or water forming at the point of crossing the dividing 352 THE LAW OP HIGHWAYS. lines of counties, the action of the board of super- visors of each county shall be necessary to give the jurisdiction permitted by this subdivision. (§ 3.) Expense of construction. — To apportion as such board may deem equitable, the expense of the con- struction of any public bridge (except on the Hudson river below Waterford, and on the East river, or over the waters forming the boundaries of the State), over a stream or other water forming the boundary line of counties between the towns at such point. Where the board of supervisors shall deem that the construction of such bridge is a general benefit to the county, they shall determine what proportion of the expense thereof should be borne by the respective counties or by the respective towns of such counties, and to authorize any town on the vote of the majority of the electors voting at any annual town meeting or regularly called special town meeting, to appropriate such a sum to be raised as other bridge moneys are raised, to aid in the construction and maintenance of any bridge outside the boundaries of the town or county, but forming a continuation of highways leading from such town or county, and deemed necessary for the public conve- nience. (§ 4, as amended by Laws 1878, chap. 77. ) Draw, bridges. — To provide for the care, mainten- ance, preservation, and reparation of any draw or other bridge (except on the Hudson river below Waterford, and on the East river or over the waters forming the boundaries of this State) crossing a stream which forms at the point of crossing the dividing line of counties or of towns, and the maintenance, care and preservation of which bridge is by law a joint charge on such coun- ties, or on such towns or on the towns in which such JBEIDGES. 353 bridge may be situated, and to severally apportion, as such board may deem equitable, the charge and ex- pense for such maintenance, care, preservation and reparation on the towns respectively liable therefor, or •on the respective counties when liable. (§ 5, as amended by Laws of 1879, chap. 364.) Liability of commissioners. — The rule as to the lia- bility of commissioners to a private action, for injuries sustained from a bridge being out of repair, is the same as in cases of ordinary highways. Their liability in such, cases has been heretofore treated of. The principle to be drawn from the cases is, that such com- missioners are not liable for damages sustained from a neglect on their pait to repair bridges, unless they have sufficient funds on hand or are clothed with the power to obtain them. {Hotier v. BarkJioof, 44 N. T. H. 113 ; People V. Town Auditors Little Valley, 75 N. T. B. 316.) Where the commissioners of highways were notified that a bridge was defective, no particular defect being pointed out, and in company with an experienced bridge builder examined the bridge carefully from above and below, taking ofE the planks and testing the timber, but could discover no defect, and the bridge fell, the timbers being rotten at the centre— held that the de- fendants were guilty of no negligence, and plaintiff was not entitled to recover. [Hicks v. Chaffee, 13 Hun, 393.) Quere. — Should not an experienced bridge builder have tested the timbers by boring ? The commissioners may be indicted for neglect to make the necessary repairs. (Per Wkight, J., in GarlingTiouse v. Jacobs, 29 iV. T. JR. 303, and per Beardsley, J., in Wilson v. Mayor of New York, 1 24 354 THE LAW OF HIGinVATS. Denio, 599; see also 11 WeTid. 539.) But an indict- ment against them will not lie unless they have funds or the power to obtain them, and the indictment should aver that fact. {People v. Adsit, 2 Hill, 619 ; 4 id. 630; UJV. Y.R. 113.) What bridges commissioners to repair. — All public bridges are prima facie repairable by the commis sioners of highways, without distinction of foot, horse, or carriage bridges, unless they can show that others. are bound to repair particxilar bridges. But where a bridge has been erected solely for the benefit of indi- viduals, although it may be used by the public, the persons who erect it must keep it in repair, ;ind they are liable for any injury that may happen by. reason of its being out of repair ; and in case of any such injury, or in case the bridge get out of repair, the authors of it may be indicted. {Dygert v. SclienclCy 23 Wend. 446.) The fact that the public use a bridge, does not make the town chargeable with its reparation. Thus, if a man dig a channel across a road for his own private use, and build a bridge over it, the public trav- eling the highway must use the bridge, for it is a part of the highway, but since the highway was as good before the building of the bridge as since, the public are not charged with the repair of the bridge. The public to become charged must derive some benefit from the bridge, which they manifestly do not, where the way was as good before the erection of the bridge as after it. (See ante p. 11.) But, if the bridge be built over a natural stream, and the public cross and recross thereon, and the way is improved thereby, the town should keep it in repair, although it was built for the private benefit of the builder. {Dygert v. Schenck^ 23 Wend. 446, and see further herein, ante p. 11.) BBiDaES. 355 Mandamus. — A mandamus will not be granted to compel commissioners to proceed to repair or erect a bridge, unless they have funds sufficient therefor. In the People v. Commissioners of Hudson (7 Wend. 474), it appeared that a bridge over a stream had fallen down or become unsafe to pass and repass, and the re- lator applied for a mandamus, commanding the com- missioners to rebuild the same. An alternative man- damus was issued, and the commissioners made return thereto, that the expense of building the bridge would be about $700, and that they had no funds whatever to appropriate to that use. The court refused a peremp- tory mandamus, on the ground of want of funds. Liability of towns. — The law as to the liability of towns and incorporated cities and villages, for repairs of roads, has been treated of heretofore, and is referred to as applicable to bridges. Commissioners may construct new hridges.^Kl- though the statute does not, in direct and express terms, make it the duty of highway commissioners to construct new bridges where none have been before built; yet, they have the- implied power to construct such new bridges, especially such bridges as it is the duty of the towns to make and keep in repair. In no case, have they any power or authority to construct bridges at the expense of the town, or of the county, unless they are connected with and form a part of an existing highway. {Mather v. Crawford, 36 BarTi. 564.) But HoGEBOOM, J.-, 'v!x People -v. Meach, 14 Abb. Pr. {JV. 8.) 429, says ; The objection that no road or highway was connected with the bridge at the time of its location, I regard as insufficient to retain an injunc- tion. 356 THE LAW OF HIGHWAYS. Notice on bridge. — The commissioners of highways, of each town, may put up and maintain, in conspicu- ous 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 feet, a notice with the following words in large characters: "One dollar fine for riding or driving on this bridge faster than a walk." And when the length of said chord is over fifty feet and not over one hundred feet, the fol- lowing notice : "Five dollars fine for riding or driving on this bridge faster than a walk ;" and when the length of said chord is over one hundred feet and not over two hundred feet, the following notice: "Ten dollars fine for riding or driving on this bridge faster than a walk ;" and when the length of said chord is over two hundred feet, the following notice : ' ' Twenty- five dollars fine for riding or driving on this bridge faster than a walk." (1 B. S. 525, § 122, as amended by chap. 22 of the Laws of 1875.) Penalty. — Whoever shall ride or drive faster than a walk on any bridge in this State, i;pon which such notices shall have been placed, and shall then be, shall forfeit for every offense the sum specified in said notice. {Id. % 123.) Injuries to bridge. — Whoever shall injure any bridge, maintained at the public charge, shall, for every offence, forfeit treble damages. {Id. § 124.) In addition to this, it is provided that every person who shall vsTllfully or maliciously destroy any public or toll bridge, or turnpike gate, shall, upon conviction be adjudged guilty of a misdemeanor. (2 B. 8. 695, §30.) It is also declared to be arson, in the fourth degree. BEIDGES. 357 to willfully set fire to, or burn, in the day or night time, any toll bridge, or any other public bridge. (3 R. S 667, § 7, as amended Laws 1869, chap. 873.) It was held in Town of Pierrepont v. Lovelass (4 Hun, 696), that where a town by legislative sanction, ac- quires the right from a turnpike company to maintain a bridge, such right becomes an easement, the property of the town, and the town may maintain an action to recover damages for injury caused to such bridge by floating logs. The judgment was reversed and new trial ordered in 72 J!f. Y. B. 211, on the ground that the contractors and not the owners were liable. 2. Monet, How Provided eok Repaiks. The power and duties of the commissioners of high- ■ ways, in raising money for the repair of roads and bridges, have been before treated of, and the statutes relating thereto cited at large. {Ante p. 110, et seq.) By such statutes it is provided, that the board of supervisors are to cause to be levied, in any town, a sum not exceeding $250 in any year, upon an estimate made for that purpose by the commissioners of high- ways, for the improvement of roads and bridges. (1 i?. S. 502, § 4.) A further sum of $250 or less, in any one year, may, upon a vote of the town, in town meet- ing, be raised by the board of supervisors. (Laws 1882, chap. 274.) The supervisors have further power to cause to be levied and collected such further sum not exceeding $500 in any one year, as a majority of the qualified voters of the town, at any legal town meeting, shall have voted to be raised upon their town. (Laws 1838, chap. 314.) And when the commissioners shall deem these sums insufiicient, they may apply, in open 358 THE LAW OF HIGHWAYS. town meeting, for a vote authorizing such further sum, as may be necessary, not exceeding $750, in addition to the sum now allowed by law. (Laws 1857, chap. 615.) Again, the board of supervisors in each county, are empowered to authorize any town in their county, by a vote of such town, to borrow any sum of money not exceeding $4,000 in one year, to build or repair any roads or bridges, and prescribe the time for payment within ten years. (Laws 1849, chap. 194, § 4, sub. 9.) The powers of supervisors in this direction were again enlarged by Laws of 1875, chapter 482, § 6, as amended by Laws of 1876, chapter 257, as follows : To authorize any town or towns liable for the erection, care, repair and maintenance in whole or in part, of any bridge (except on the Hudson river, below Water- ford, and on the East river, or over the waters forming the boundaries of the State), to erect, repair and main- tain the same, and to borrow such sums of money, in the manner provided in sub-division twenty-nine of this section, as may be necessary for the purposes of such erection, repair and maintenance, and to pay any existing debt incurred in good faith, by or in behalf of such town or towns for such purpose before the pas- sage of this act. But no authority shall be exercised under this subdivision, except upon the application of a town liable to be taxed for such purpose to be made by vote of a majority of the electors thereof voting, at a regular town meeting, or at a special town meeting called for the purpose, or upon the application of the supervisor, by and with the consent of the commis- sioner of highways, town clerk and justices of the peace of said town. If any town, at a regular town meeting held between the first day of February, eigh- teen hundred and seventy-five, and the passage of this act, shall have elected commissioners for the purpose BRIDGES. 359 of building a bridge and providing money to pay for the same by the issuing of bonds or otherwise, such bonds not exceeding the amount authorized at such town meeting, are hereby authorized and declared valid, but said bonds shall not be sold or otherwise disposed of for less than par. And the board of super- visors shall levy a tax on such town for the payment of such indebtedness at such times and in such amounts as may be necessary to meet the obligations incurred by said commissioners in pursuance of in- structions given by such town at the time of electing said commissioners. When huilt or repaired at expense of county. — It is provided by the Revised Statutes, that whenever it shall appear to the board of supervisors of any county, that any one of the towns in such county would be unreasonably burdened, 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 expenses as they may deem proper ; and such moneys, when col- lected, shall be paid to the commissioner of highways of the town, in which the same are to be expended. (1 B. S. 524, § 119.) No board of supervisor shall, under the last preced- ing section, cause any sum exceeding one thousand dollars, to be levied and raised on any county in any one year. (Id. § 120.) In case the commissioners of highways of any town shall be dissatisfied with the determination of the board of supervisiors of their county, touching an allowance for any such bridges, such detei'mination 360 THE LAW OF HIGHWAYS. shall, on the application of the commissioners, be re- viewed by the Court of Sessions of the same county, whose order in the premises shall be observed by every such board of supervisors. {Id. % 121.) The notice of the application should be served upon the chairman of the board of supervisors ; or, in case there is none or he is absent, on the clerk of the board. Although no time is prescribed, it is proper that the notice should be served at least ten days before the application. The limit in the above provision prohibiting the rais- ing in any one county more than $1,000 in any one year, relates only to bridges which are a charge upou the towns. Where any bridge is a charge upon the county they have ample power to raise all necessary money to rebuild or repair it, even after they have made provision for raising and distributing the $1,000 above provided. {People v. Supervisors of Dutchess^ 1 Hill, 50.) When money may he raised on county.— 'Qj section one of chapter 314 of the act of 1838, it is provided that the board of supervisors of each county in this State, in addition to the powers now conferred on them by law, have power, at their annual meeting or when lawfully convened at any other meeting — 1. To cause to be levied, collected and paid to the treasurer of the county, such sum of money as maybe 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. 2. To apportion the tax so to be raised among the several towns and wards of their county as shall seem to them to be equitable and just. BRIDGES. 361 Notice of application. — The third section of the same act provided that all persons intending to apply to any board of supervisors for the imposing any tax pursu- ant to the" first section of the act above cited, shall cause a notice of such application to be published once in each week for four successive weeks, immediately preceding the meeting of the board of supervisors at which such application shall be made, in a newspaper printed in such county ; but if no newspaper be printed in the county, then such notice shall be published in like manner in some public newspaper printed nearest thereto. (For form of notice, see Appendix No. 87.) It was thought in Hill v. Supervisors of Livingston (12 N. T. R. 52), that this provision did not relate ex- clusively to bridges which are a charge upon the whole county, but that the only limitation of the subject in respect to which the power is to be exercised is, that the bridges be in the county. (See People v. Super- visors of Dutchess, 1 Hill, 50.) It is also held that the section above cited requiring all persons intending to apply for the imposition of a tax to give notice, does not restrain the board from acting on their own motion in raising, money for the necessary repair of county bridges. 3. Wheee Beidge is Damaged or Destroyed. By the act of 1858 (chap. 103, as amended in 1865, chap. 442), entitled "An act to provide for the speedy construction and repair of roads and bridges, where the same have been damaged or destroyed," it is pro- vided that : § 1. In case any road or roads, bridge or bridges shall be damaged or destroyed by the elements or otherwise, after any town meeting shall have been held, 362 THE LAW OP HIGHWAYS. and since the fifteenth day of February, a. d., eighteen hundred and sixty-five, then, and in that case, it shall be lawful for the commissioner or commissioners of highways, by and with the consent of the board of town auditors, or a majority thereof of the town or towns in which such road or roads, bridge or bridges shall be situated, to cause the same to be immediately repaired or rebuilt, although the expenditures of money required may exceed the sum now authorized to be raised by law upon the taxable property of the town or towns for such purposes ; and the commis- sioners of highways shall present the proper vouchers for the expense thereof to the town auditors, at their next annual meeting, and the said bill shall be audited by them, and the amount audited thereon shall be col- lected in the same manner as amounts voted at town meetings as now required. The commissioners acting under this act shall be entitled to receive, for each day's service actually rendered, two dollars. § 2. The 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 com- missioner of highways, and the bills and expenses in- curred in the erection or repairs of any such roads or bridges, may then be presented to and audited by such board of town auditors ; and the supervisor and town clerk shall issue a certificate, to be subscribed by them, setting forth the amount so audited and allowed, and in whose favor, and the nature of the work done and the 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 man- ner as other town expenses. § 3. No account for services rendered or materials furnished according to the provisions of this act, shall BRIDGES. 363 be allowed by such board, unless the same shall be accompanied by the affidavit of the party or parties performing such labor, or furnishing such 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 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. Where a highway bridge was carried away by a flood shortly prior to the town meeting of 1878, held that the commissioners of highways of the town, with the con- sent of the board of town auditors, were authorized to enter into a contract for the rebuilding of the bridge, under the provisions of the above law ; and that the commissioners were authorized to contract to pay for the bridge upon the completion thereof — although they had no money in their hands for that purpose. {Boots V. Washburn, 79 W. Y. B. 207.) 4. Bridges Between Adjoining Towns — How Eepaired. 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. (Laws 1841, chap. 225, § 1, as amended 1857, chap. 383, § 1.) This imposes the expense equally upon the towns, without regard to the portion of the bridge located in either, the change of the words "at the equal expense " in the original act to "at the joint expense" in the amended act, was not intended to affect the proportion charge- 364 THE LAW OF HIGHWAYS. able to each. town. {Lapham v. Rice, 55 N. Y. R. 472.) A road running on the dividing line between two towns — V. and M. — having been laid out by the com- missioners of highways of said towns, conformably to the statute, was by them divided into two road districts and one of such districts allotted to the town of V. apd the other to the town of M. — held that for the expenses of erecting and keeping in repair a bridge over a stream crossing the road in the district allotted to the town of V. the town was alone liable, and that the town of M. was not bound to contribute thereto. (1 R. S. 517, § 75; Tifft. V. Alley, etc. 3 N. Y. Sup. 784.) Held also that the road district was within the ex- clusive jurisdiction of the commissioners of the town of V. {Id). Where the bridge was part of the highway between Yonkers and the town of Eastchester, outside the city bounds of Yonkers, held that an action to be main- tained, must be brought against the towns jointly. {Theall v. City of Yonkers, 21 Hun 265.) Commissioners to make joint contract. — For the purpose of building and maintaining such bridges, it shall be lawful for the commissioners of said towns, or of commissioners of either one or more towns respec- tively, 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 rep- resentative successors, jointly or severally, respec- tively ; and the commissioners of said towns, so liable, may be proceeded against jointly, for any neglect of duty, in reference to such bridges. {Id. § 2. ) Such contract may be enforced against the commissioners jointly or severally. {Harris v. Houck, 57 Barb, 619.) BRIDGES. 365 In case of neglect or refusal to repair sucTi bridges. —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 or repair such bridge and then to maintain a suit at law in their official capacity, against said com- missioners, 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 cost of suit and interest, without proving any contract ; and in an action in pursuance of the act hereby amended, to recover the expense of building or repairs, it shall not be necessary to entitle such, commissioner or commis- sioners to recover on the trial of the above action, to prove that the defendants, or their predecessors in office were, at the time of the service of the notice above mentioned, in the possession of funds, belonging to the town which he or they represent, sufficient to make such repairs ; nor shall the want of funds be any defense to the said action ; and it shall be the duty of the board of supervisors of the county, in which such towns are located, to levy the amount of any judgment so obtained, with costs and interest, on the taxable property of any town, against the commissioner or commissioners of which such judgment has been ob- tained, but the commissioner or commissioners of such town shall not be personally liable for such judg- ment. {Id. % 3.) 366 THE LAW OF HIGHWAYS. Judgment a charge on town. — Any judgment recov- ered against the commissioners of liighways in their ofiicial capacity under the provisions of this act, shall be a charge on said town, and collected in the same manner as other town charges, except in cases where the court before which the judgment shall be recovered shall certify that the neglect or i-efusal of said com- missioners was willful and malicious, in which case said commissioners shall be personally liable for such judgment, and the same may be enforced against them in the same manner as against individuals. {Id. § 4.) Petition of freeholders. — Whenever any adjoining towns shall be liable to make or maintain any bridge over any stream dividing such towns, whether in the same or in different counties, it shall be lawful for three freeholders in either of such towns, by a petition in writing signed by them, to apply to the commis- sioners of highways in each of said towns, to build, rebuild or repair such bridge, and if such commis- sioners refuse to build, rebuild or repair such bridge within a reasonable time, either for the want of funds or any other cause, the said freeholders, upon affidavit and notice of motion, a copy of which shall be served on each of said commissioners at least eight days before the hearing thereof, may apply to the Supreme Court at a 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, rebuild or repair such bridge, and such court or judge upon such motion may in doubtful cases refer the matter to some disinterested person to ascertain the requisite facts in relation thereto, and to report the evidence thereof to said court or to such judge. Upon BRIDGES. 367 the coming in of sucli report in case of such reference, or upon or after the hearing of the motion, in case no such reference shall be ordered, the court or judge shall make such order thereon as the justice of the case shall require. If such motion be granted in whole or in part, whereby funds shall be needed by the said commissioners to carry said order into effect, such court or Judge shall specify the amount of money required for that purpose, and how much thereof shall be raised in each town. (Laws 1857, chap: 639, § 1.) Proceedings on reference.— In case a reference shall be ordered as specified in the first section of this act, the referee shall appoint a suitable time and place for taking the evidence, and shall notify one of said free- holders and the said commissioners thereof, or cause theni to be notified ; he shall have power to issue such subpoenas for witnesses at the instance of either party, and may compel the attendance of such witnesses, or failing to appear in obedience to such 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 witnesses before him. The referee shall report the evidence taken be- fore him to the court or justice who made the order of reference without unnecessary delay, and shall be entitled to three dollars a day for his services, to be paid in the first instance by the said freeholders. {Id. §2.) Commissioners of adjoining towns, how compelled to join in building bridge. — The commissioners of highways, of any such town, are hereby authorized to institute and prosecute proceedings under this act, to 368 THE LAW OF HIGHWAYS. compel the commissioners of sucli adjoining towns, to join in the building, rebuilding or repair of any such bridge, in like manner as the said freeholders are here- by authorized so to do. {Id. § 3.) Locating bridge. — Upon the said order for building, rebuilding or repairing such bridge being, made, and a copy thereof being served on the commissioners of highways of such adjoining towns respectively, the commissioners of highways of said two towns, shall forthwith ifceet and fix on the place of such bridge, or the manner of repairing such bridge, and shall cause such bridge to be built, rebuilt or repaired, out of any funds in their or either of their hands, applicable thereto ; and in case no funds, or an inadequate amount thereof are on hand, then they shall cause the same to be built, rebuilt or repaired upon credit, or in part for cash, and in part upon credit, according to the exigency of the case ; and the commissioners are authorized to enter into a contract, with any contractor, for building, rebuilding or repairing such bridge, pledging the credit of each town for the payment of its appropriate share, so far as the same shall be done upon credit. {Id. § 4. ) Report to auditors. — The commissioners of high- ways, in 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, for each town, shall attach to the copy of the said order granted by the Supreme Court, or a judge thereof, an accurate account, under oath, of what has been done in the premises, and de- liver the same to the supervisors of each town. The board of supervisors, at their annual meeting, shall levy a tax upon each of such towns, when in the same county, and upon the appropriate town when in differ- BRIDGES. 369 ent counties, its share of the cost of building, rebuild- ing 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. {Id. § 5.) Right of appeal. — Either party considering himself aggrieved by the granting or refusal to grant such order by the court at special term, or by a judge of such court, may appeal from such decision to the Supreme Court at general term, for the review of such decision. The Supreme Court, at the general term, shall have power to alter, modify, or reverse such order, with or without costs. {Id. § 6.) Costs. — The Supreme Court, at special term, or a judge at Chambers, shall have power to grant or refuse costs as upon a motion, including also witnesses' fees, referees' fees and disbursements. The appeal provided for in the last section, shall conform to the. practice of the Supreme Court in case of appeals from the decision of a motion at a special term, to the general term of the Supreme Court. {Id. § 7.) Proceedings where such bridge has been repaired hy indimduals. — Whenever any such bridge shall have been, or shall be so out of repair, as to render it unsafe for travelers to pass over the same, or whenever such bridge shall have fallen down, or been swept away by a freshet or otherwise, if the commissioners of high- ways of such adjoining towns, after reasonable notice of such condition of such bridge, have neglected or refused, or shall neglect or refuse to repair or rebuild such bridge, then, and in such case, whatever funds have been or shall be necessarily or reasonably laid out 25 370 THE LAW OF HIGHWAYS. or expended in repairing such bridge, or in rebuilding^ the same, by any person or persons, or by any corpor- ation, shall be a charge upon such adjoining towns, each being liable for its just proportion ; and the person or persons, or corporation, who has made such expendi- ture, or shall make th^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 I'eimburse such' expenditures, which application shall be made upon serviag 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 commissioners of highways, in each of such towns, forthwith to serve a copy of such order upon the supervisor of each of such towns, who shall present the same to the board of supei'visors at their next an- nual meeting. The boai'd of supervisors shall raise the amount justly chargeable upon each town, and cause the same to be collected and paid to such person or persons, or corporation, as incuried such expenditure. The right of appeal is given to such party under this section, provided for under the sixth section of this act. {Id. § 8.) The proceedings authorized by this act can only be instituted in the cases specifically provided for by the terms of the act, i. e. of bridges "over streams dividing towns" {Matter of Petition, &c. 69 JST. Y. H. 316), and the act confers no authority as to bridges over bays^ lakes or other bodies of water not "streams," or as to causeways or biidges over marshes, between two towns. {Matter of Irondequoit, etc. 68 ISf. Y. R. 376.) BRIDGES. 371 5. Toll Bridges. A toll bridge may also be a highway, only differing from an ordinary public bridge in this, that the pub- lic, in consideration of the payment of certain tolls, are relie-ved from the responsibility of keeping it in repair. Subject to the payment of such tolls, the rights and privileges of the public on such bridges are the same as on ordinary public bridges. (See ante p. 15.) A toll bridge over a navigable river is properly assessed and taxed as real estate. {H. R. Bridge Co. V. Patterson, 14. N. Y. B. 365.) Liability f 01- repair. — A corporation which, in pur- suance of its charter, builds a bridge and takes tolls from passengers, thereby becomes bound to keep the bridge in repair. {Townsend v. Susquehanna Turn- pike Co. 6 John. 90 ; Kane v. People, 3 Wend. 363.) In Townsend v. Susquehanna Turnpike Co. supra, the action was for the value of a horse killed by the fall of defendants' bridge, it was held that the defend- ants were bound to bestow ordinary care and diligence in the construction of their bridges and keeping them in repair; but were not responsible for accidents which did not arise from their neglect or want of such ordi- nary care and skill. The plaintiff in that case had gone on to the bridge with a heavy load. There was some conflict of evidence about the sound condition of the bridge. The jury gave verdict for the plaintiff, and the court sustained it on appeal — with great reluc- tance — on the ground that it was not so strongly against the evidence as to justify them in setting it aside. In Thompson v. Matthews (2 Bdw. 212), which was an action by the plaintiffs, owners of a toll bridge, 372 THE LAW OF HIGHWAYS. to restrain the defendant from crossing the bridge with extraordinary loads, the court said : If persons take improper loads, and the bridge has been improperly constructed, then the owners of it have a remedy by a special action on the case, or in trespass for damages done ; while on the other hand, if passengers and their property should sustain an injury by a breaking from ordinary loads, the owner must respond in damages. A toll bridge company, so long as they continue to take toll, cannot discharge themselves from liability to individuals by simply giving notice of danger. To give the notice such effect they must likewise cease to take the toll. {Randall v. GliesTiire Turnpike, 6 N. Hamp. R. 147.) Bridge reported unsafe. — Whenever complaint, in writing, on oath, shall be made to a commissioner of highways of any town, in which shall be in whole or in part, any toll-bridge belonging to any person or cor- poration, representing that such toll-bridge has from any cause become and is unsafe for the public use, it shall be the duty of such highway commissioner forth- vidth to make a careful and thorough examination of such bridge so complained of, and if, upon such exam- ination of such bridge, the said highway commissioner shall be of opinion that the same has from any cause become dangerous, or unsafe for public use, he shall thereupon give immediate notice to the owner or own- ers of such toll-bridge, or to any agent of such owner or owners acting as such agent, in respect to said bridge, that he has, on complaint made, carefully and thoroughly examined such bridge, and found it to be unsafe for the public use. It shall thereupon be the duty of such owner or owners of such bridge, imme- diately to commence repairing the same within one BEIDGES. 373 week from the day of such notice given, or such rea- sonable time thereafter as may be necessary to thor- oughly repair such bridge, so as to make the same in all respects, safe and convenient for public use ; and for neglect to take prompt and effective measures so to repair such bridge, the person or corporation owning such bridge, shall forfeit twenty-five dollars for the benefit of the town in which the highway commissioner making such examination and giving such notice shall reside, to be sued for and recovered by such highway commissioner, and expended for the improvement of highways of said town ; and after the expiration of the time for such repairs and failure to make the same, it shall be unlawful for such bridge owner, or owners, to demand or receive any toll for using said bridge until the same shall be fully repaired. (Laws of 1873, chap. 448, § 1.) ' Commissioner to repair. — In case of neglect of the owner or owners of such toll-bridge, for one week, to take such measures, as by the first section of this act are required, to repair such bridge, so as to make the same safe and convenient for public use, it shall, with- out .further proceedings or notice, be the duty of such highway commissioner to proceed at once to procure all necessary materials of good and suitable quality, and to secure the requisite skilled workmen, for the needful repairs of such toll-bridge, keeping or causing to be kept a just and true account of the expenses of procuring the said material and labor, and the repair thereof, so as to make it safe and convenient for pub- lic use. Such account, or a copy thereof, of the cost of such material and labor at said toll-bridge and the repair thereof, duly verified by such highway commis- sioner, shall be paid on demand by such bridge owner 374 THE LAW OF HIGHWAYS. or owners, together with two dollars per day for the services of such highway commissioner, for each day during which he shall have been engaged in the exam- ination and repair of such toll-bridge, the purchase of material and labor, and keeping and rendering to such bridge owner or owners such account. {Id. § 2.) Expense of repairs, Jiow collected. — In case of the neglect of' such bridge owner or owners to pay such account on presentation and demand, it shall be the duty of said highway commissioner to sue for and recovei' the same, in any court having jurisdiction of such ac- tion, such recovery to be for the benefit of his town, to pay said account for material, labor and commis- sioner' s fees, which are are hereby made a charge upon such town. {Id. § 3.) Must rebuild bridge destroyed. — If a bridge be car- ried away by a sudden flood, the company must rebuild it within a reasonable time, regard being had to the importance of the road, the magnitude of the work, the opportunity for procuring materials, and other circumstances connected with its reconstruction. {Peoples. Hillsdale, cfcc. Turnpike Co. 23 Wend. 254.) Should the bridge remain impassable, and the business of the company be thereby stopped for the period of one year, it will amount at common law to a forfeiture of their charter ; but a legal course of proceeding must be instituted to obtain judgment of ouster. {Id.) And where a toll-bridge is out of repair, the public are not limited to the remedy of having the gates thrown open, but may proceed by information. {Id.) Under the act of 1848, hereafter cited, the bridge must be rebuilt within three years, or the company shall cease to be a body corporate. BRIDGES. 375 Indictment.— 'ihonid a bridge company not keep their bridge in repair, they may be indicted for main- taining a nuisance ; but in analogy to the rule in like ■cases, to authorize a conviction it is necessary to allege in the indictment, and prove on the trial, not only that the bridge has been out of repair, but also that it con- ■ tinues so to be, down to the time of the finding of the indictment. {People v. Branchport, &c., Plankroad Co. 5 Park. Cr. 604.) Injuring or passing gate. -It is provided that every person who shall willfully break, throw down, or injure any gate erected on any bridge, erected or con- structed by virtue of the act of 1848 (hereafter cited), •or forcibly or fraudulently pass any such gate thereon, without having first paid the legal toll for crossing said bridge, shall for each offence forfeit to the corpo- ration injured the sum of twenty-five dollars, in addi- tion to the damages resulting from such wrongful act. {Laws 1854, chap. 120.) One who passes a toll-gate without paying the toll, is liable for the penalty, as his intention not to pay is ■evinced by the act itself. The company have two modes of enforcing payment; one by closing the gate, the other by suing for the pen- alty. {Rome & Oswego Road Co. v. Stone, 62 Bari. 601.) Free passage to National Guard, etc. — By the Laws of 1870 chap. 80, § 261, any person belonging to thf- military forces of this State, going to or returning from any parade, encampment, drill or meeting which he may be required by laip to attend, shall, together with his conveyance and the military property of the State, be allowed to pass free through all toll-gates 376 ■ THE LAW OF HIGHWAYS. and over all toll-bridges and ferries. This seems to have been re-enacted with some changes by Laws of 1878, chapter 36, and a penalty attached, as follows : Any member or members of the national guard of this State, when in uniform, going to or returning from any parade, drill or meeting, which he or they may be required to attend in compliance with orders from any competent authority, shall, together with, such conveyance or conveyances or military property of . the State as he or they may be in charge of, be allowed, without any hindrance or delay, to pass free through all toU-gates and over aU toll-bridges and fer- ries within the State. Penalty. — Any toll-gate or toll-bridge keeper or any ferry master, or any person or persons, who may be in charge of any toU-gate, toll-bridge or ferry, who shall willfully hinder or delay any member or members of the national guard, or shall refuse passage to such member or members of the national guard, who shall be acting under the provisions of the first section of this act, shall be guUty of a misdemeanor, and on con- viction be lined no less than ten dollars, and no more than twenty dollars, or being imprisoned no less than five days and no more than ten days. Notice on toll bridge. — -It shall be lawful for any cor- poration or individual owning a toll-bridge to put up at each end thereof, in a conspicuous place, a notice in the following words : ' ' One dollar fine for riding or driving faster than a walk on this bridge," and during the continuance of such notice any person who shall ride or drive faster than ^ walk on such bridge, shall forfeit the sum of one dollar, to be sued for in the name of the corporation or person or persons owning BRIDGES. 377 such bridge, and to be recovered with costs of suit. (Laws 1838, chap. 262, § 2.) Bridges to become highways. — Whenever a corpo- ration owning a toll-bridge shall become dissolved, such bridge shall be left without waste or damage, and shall be a public highway. {Id. § 3.) In such case it becomes the duty of the commissioner to keep in repair, as in case of other bridges, and they may be compelled so to do by mandamus, or may be indicted, provided they have the necessary funds for the repair. 6. Bridge Companies— How Incorporated. The following is the act of 1848, chapter 259, provi- ding for the incorporation of bridge companies : Corporation may he formed. — §.1, Any number of persons not less than five, may be formed into a cor- poration, for the purpose of constructing and owning a bridge across any stream of water, as hereinafter pro- vided, upon complying with the following require- ments : Articles of association. — 1. They shall severally subscribe articles of association, in which shall be set forth the name of the corporation, the number of years the same is to continue, which shall not exceed fifty years ; the amount of the capital stock of the corpora- tion, which shall be divided into shares of twenty-five dollars each, the number of directors and their names, who shall manage the concerns of the corporation for the first year, -and until others are elected ; the loca- tion of such bridge, and the plan thereof : 378 THE LAW OF HIGHWAYS. 2. Each subscriber to such articles of association shall subscribe thereto his name and 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 capital stock, specified in the articles of association, shall have been subscribed, and on complying with the provisions of the next section, such articles may be filed in the office of the State 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 in such company, and theii' successors, shall be a body corporate, by the name specified in such articles of association, and shall possess the powers and privileges, and be subject to the provisions of titles three and four of chapter eighteen of the first part of the Revised Statutes, so far as those provisions are consistent with the provisions of this act. Liability of stockholders. — § 2. All the stockholders of every company incorporated under this act, shall be severally and individually liable, to an amount 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, sliall be one-half thereof within one year, and tlie other half thereof within two years from the time of the incorpor- ation of such company, and if not so paid in, such corporation shall be dissolved. If the directors of BRIDGES. 379 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. Amoiint to he paid tefore filing.— % 3. Snch articles of association shall not be filed as aforesaid, until five per cent on one-fourth of the amount of the stock of snch company fixed as aforesaid shall have been actu- ally paid in, in good faith, to the directors named in STTch articles of association, in cash, nor until there shall be endorsed thereon, or annexed thereto, an affi- davit niade by at least three of the directors named in such articles of association, that the amount of stock required by the first section of this, act to be sub- scribed, has been subscribed, and that five per cent on the amount has been actually paid in as aforesaid. Copies of articles to he emdence.^-% 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 pre- sumptive evidence of the facts therein contained. Election of directors. — §5. The business and prop- erty of every such corporation shall be managed and conducted by a board of directors, consisting of not less than five nor more than nine, who shall be chosen, except those for the first year, at such place within a county in which the bridge of such corpora- tion 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 380 THE LAW OF HIGHWAYS. week for four successive weeks, in a public newspaper, published in each county in which such bridge or any part thereof, shall be located, and if in any county no such paper shall be publiBhed,Isuch notice shall be pub- lished in some county adjoining such last mentioned county. All elections of directors shall be by ballot and by a majority of all votes given thereat ; and every stockholder being a citizen of the United States and attending in person or by proxy, shall be entitled to one vote for each share of stock which he shall have owned absolutely, or as executor, 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, ab- solutely in his own right or as executor, administrator or guardian, and entitled to vote at the election at which he shall be chosen, nor unless he shall be a citi- zen of this State ; and a majority of the directors shall, at the time of their election, be residents of the. county or counties in which such bridge shall be loca- ted. Whenever any vacancy shall happen in the board of directors, it shall be supplied until the next election by the remaining directors. The directors of every such company shall be elected in the same month in each and every year, and such election after the first, shall be held on the first Tuesday of such month, and the directors chosen at any election shall hold their offices, to and including the Tuesday next after that appointed by law for holding the election next suc- ceeding that at which they were chosen. If an elec- tion of directors shall not beheld on the day prescribed by this act for holding the same, the directors in office on that day shall hold their offices until their successors shall be elected, but after the expiration of their regu- lar term of office as prescribed by this section, they BEIDGE8. 381 shall be incapable of doing any act, as sncb directors, except such as may be necessary to give effect to an election of directors. The provisions of the second article of the second title of the eighteenth chapter of the first part of the Revised Statutes, shall apply to every corporation formed under this act, so far as such provisions shall be consistent with the provisions of this act. 9 Application for leave to erect bridge. — § 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 g,pplication, such corporation shall give notice, by publishing the same in at least one public newspaper in such county, or if no newspaper is published therein, then in an adjoining county, once in each week for six weeks successively,, previous to the time of presenting such application to such board specifying such time and the location of such proposed bridge. If the place of the location of such bridge shall be situated in more than one county, such application shall be made to the board of super- visors of every such county. Such application shall also specify the length and breadth of such bridge ; the notice of such application shall set forth all the particulars required to be specified in such application. Upon the hearing of the said application, all persons residing in such county or interested in such applica- tion, may appear and be heard in respect thereto. Such board may take testimony in respect to such ap- plication, or may authorize it to be taken by a county judge or justice of the peace of such county ; and it may adjourn the hearing from time to time. A copy 382 THE LAW OF HIGHWAYS. of the articles of association of such corporation certi- fied 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 man- ner 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 ai'ks. Where the notice is given before the incorporation of the company, but the company is duly incorporated at the time of the application, the preceding will be valid. (Laws 1852, chap. 372.) Where the stream is navigable, or the bed of it be- longs to the State, application must be made to the legislature. {Fort Plain Bridge Co. v. Smif7i, 30 JY, T. R. 44.) Assevf of board to be recorded. — S 7. If, after hear- ing such application, such board shall be of opinion that the public interests will be promoted by the con- struction of such bridge on the proposed site, it may, if a majority of all the members elected to such board, shall assent thereto, by an order to be entered in its minutes, authorize such company to construct such bridge, as shall have been specified in the application which shall be particularly described in such order. Such corporation shall cause a copy of such order, certified by the clerk of such board, with such a^jplica- tioii, 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 tiled at the expense of the corporation, with all the other papers relating thereto, or to the proceeding of said board thereon, in the office of the clerk of the countv in BRIDGES. 383 which it shall have been made. Any corporation formed under this act, may use, in such manner as such board shall prescribe, so much of any public highway on either side of any stream, as may be nec- essary for the construction and maintenance of such bridge and toll-houses. Over streams navigable by rafts. — § 8. In case any bridge shall be constructed, under the provisions of this act, over any stream navigable by rafts, it shall be the duty of the corporations 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 navigation thereof, which may be formed or occasioned by the erection of such bridge. Penalty for delaying rafts.— ^% 9. Any corporation organized under the provisions of this act, which shall construct a bridge over any stream, navigable by rafts as hereinbefore provided, shall be liable to pay all per- sons who may be unnecessarily or unreasonably hin- dered or delayed in passing such bridge, all damages which they shall sustain thereby, to be recovered with costs of suit. How constructed. — § 10. Every bridge constructed by virtue of this act, shall be built with a good and substantial railing or siding, at least four and half feet high. Whenever such bridge shall be completed, and a certificate signed by the county judge of the county in which such bridge is situated, or if such bridge shall be located in more than one county, by the county judge of each of such counties, and such certi- ficate filed in the office of the clerk of such county, or 384 THE LAW OF HIGHWAYS. of each of said counties, if such bridge shall be located in more than one county, that such bridge is con- structed and completed in a manner safe and conve- nient for the public use, the directors may erect a toll- gate at such bridge, and demand and receive such sum as shall be, from time to time, prescribed by the super- visors of the county or counties where the bridge is located. Exemptions from toll. — § 11. No tolls shall be col- lected 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 from a town meeting or election, at which he is entitled to vote, for the pur- pose of giving such vote, and returning therefrom ; or to or from a military parade which he is, by law, required to attend, or to or from any court which he shall be required to attend, as a juror or witness, or to or from his legally required, work upon any public highway. {Ante p. 375.) Calls on stockholders. — § 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 propor- tions, and on such conditions as they shall see lit, under the penalty of the forfeiture of their stock, and all previous payments thereon ; and they shall give notice of the payments thus required, and of the place and time when and where the same are to be made, at least thirty days previous to the time fixed for the payment of the same, for the time and in the manner herein prescribed for giving notice of the election of directors, and by sending such notice to such stock- BRIDGES. 385 holder, by mail, directed to him at his usual place of residence. Transfer of shares. — § 13. The shares of any cor- poration, formed under this act, shall be deemed per- sonal property, and may be transferred in such man- ner as shall be prescribed by the by-laws of such corporation ; and the directors of every such corpora- tion may, at any time, with the consent of a majority in amount of the stockholders in such corporation, provide for such increase of the capital stock thereof, as may be necessary for the completion or reconstruc- tion of such bridge, and the certificate of the amount of any such increase, within thirty days thereafter, shall be filed in the ofiices of the state engineer and sur- veyor, and the clerk or clerks of the counties in which such bridge is located, which certificate shall be au- thenticated by the signatures and oaths of a majority of said directors. Taxation. — § 14. So much of any such bridge or ^toll-houses, constructed by virtue of this act, as shall be within any town, city or village, shall be liable to taxation in such town, city or village, as real estate. When ceases to ie a body corporate. — § 15. Every company, incorporated under this act, shall cease to be a body corporate : 1. If, within two years from the filing of their arti- cles of association, they shall not have commenced the construction of their bridge, and actually expended thereon at least ten per cent, of the capital stock of such company ; or, 2. If within five years from the filing of such articles 26 386 THE LAW OF HIGHWAYS. 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 reconstructed within three years thereafter. Annual report. — § 16. It shall be the duty of the president and secretary of every corporation formed under this act, to report annually to the State Engi- neer and Surveyor, and the county clerk where the papers are filed, under oath, the cost of their bridge, the amount of all moneys expended, the amount of their capital stock, and how much paid in, and how much actually expended, amount received during the year for tolls, and from all other sources, stating each separately, the amount of dividends made, and the amount of indebtedness of such company, specifying the object for which the indebtedness accrued ; and such other particulars in respect to the business affairs, of such corporation, as the State Engineer and Sur- veyor, or the Legislature, or either branch thereof, required to be so reported. Private bridges. — § 17. When any bridge maybe in process of construction by private subscriptions at the time of the passage of this act, the subscribers may organize into a corporation pursuant to the provisions of this act, with the same power and privileges as if such bridges had not been so commenced. Subject to visitation. — § 18. All companies formed under this act shall at aU times be subject to visitation, and examination by an officer or agent, in pursuance of law, or by the Legislature, or by a committee, ap- pointed by either house thereof ; and the conrts of this. BRIDGES. 387 State shall have the same jurisdiction over such cor- porations and their officers as over those created by special acts. * Report, when to be made. — § 19. Every report re- quired to be made by the sixteenth section of this act, shall be made in the month of January in each year, and shall show in respect to the particulars required therein to be set forth, the affairs and business of the corpov- ation, making the same at the close of the year, end- ing on the thirty-first day of December, next preced- ing the time of making the same, and shall be pub- lished in the nearest newspaper four weeks, and eveiy 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 sucli corporation shall neglect to make such report after the expiration of the time, within which it is required sis 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-genertii every such forfeiture, by whom the same shall be sued for and recovered with costs in the name of the peo- ple ; and the certificate of the said State Engineer and Surveyor of any such neglect shall be presumptive evidence thereof, and if any such river, water-course or lake, now so navigable, shall hereafter be rendered navigable up stream by vessels or steamboats, power to require such bridge to be altered or removed is re- served to the Legislature. Saving clause. — § 20. Nothing in this act shall be construed so as to authorize the bridging of any river or water-course where the tide ebbs and flows, or any water used for a harbor, any lake, river or water, which 388 THE LAW OF HIGHWAYS. is navigable by sail vessels or steamboats, nor the con- struction of any bridge witMn the limits prescribed by any existing law for the erection or maintenance of any other bridge. Authority from the Legislature is necessary to erect a bridge over a navigable stream, or over one the bed of which belongs to the State. {Fort Plain Bridge Co. V. Bmith, 30 N. T. JR. 44.) § 21. Any existing corporation having for its object the construction and maintenance of any bridge whose charter shall expire, may be continued as such corpor- ation by complying with the provisions of this act, so far as the same are applicable to them, with the con- sent of the supervisors of the county or counties in which their bridge is located, to be obtained on appli- cation to them as hereinbefore provided. 7. Bridges over Canals. The provisions in relation to canal bridges will be found convenient for those oflScers who have the care of roads and bridges in those parts of the State inter- sected by canals. The following provisions will be found in 1 Revised Statutes, page 247 : § 174. " In all cases where a new road or public high- way shall be laid out by legal authority, in such direc- tion as to cross the line of any canal, and in such man- ner as to require the erection of a new bridge over the canal, for the accommodation of the road, such bridge shall be so constructed and forever maintained, at the expense of the town in which it shall be situate. §175. "No bridge shall be constructed across any canal, without first obtaining for the model and loca- tion thereof, the consnnt in writing of one of the canal commissioners, or of a superintendent of repairs, on BRIDGES. 389 that line of the canal which is intersected by the road. § 176. "Every person who shall undertake to con- struct or to locate such bridge without such consent, and §hall proceed therein so far as to place any mate- rials for that purpose on either bank of the canal, or on the bottom thereof, shall forfeit the surii of fifty dollars ; and each of the commissioners, superinten- dents, or engineers, shall be authorized to remove all such materials, as soon as they are discovered, wholly without the banks of the canal." 390 THE LAW OF HIGHWAYS. CHAPTER XIY. EAILBOADS IN HIGHWAYS AND STREETS. 1. When railway may be constructed In highway. 2. Compensation to owner of fee. 8. Horse railroadB in streets. 4. Over or under turnpikes and plank- roads. fi Remedy of owner of fee. C. Railroads in city of New York. 7. Consequential damages. 8. Company to restore road, 9. Action by commissioners. 10. Cattle guards at crossings. 11. Bight of public to travel with wagons, &c., on street railways. 12. Company to give signal at cross- ings. 1 . When Railroad may be Constructed in High- way. Whenever any association or individual shall con- struct a railroad, upon land purchased for that pur- pose, on a route which shall cross any road or other public highway, it shall be lawful for the commission- ers of highways, having the supervision thereof, to give a written consent that such railroad may be con- structed across, or on such road or other public high- way ; and, thereafter, such association or individual shall be authorized to construct and use such railroad across or on such roads or other highways as the com- missioners aforesaid shall have permitted ; but any public highway, thus intersected or crossed by a rail- road, shaU be so restored to its former state as not to have impaired its usefulness. (Laws of 1835, chap. 300 ; for form of commissioners' consent, see Appen- dix, No. 18.) By order of court. — By subdivision five, section RAILROADS IN HIGHWAYS AND STREETS. 391 twenty-eight, of chapter 140, of the Laws of 1850, rail- i-oad companies are authorized to construct their road across, along or upon any street, highway, plankroad, etc., which the route of its road shall intersect or touch ; but the company shall restore the street, high- way, plankroad, etc., thus intersected or touched, to its former state, or to such state as not necessarily to have impaired its usefulness. But nothing in the act is to be construed to authorize the construction of any railroad not already located in, upon or across any street, etc. , in a city, without the assent of the corpo- ration of such city. Nor to authorize any such rail- road company to construct its road upon and along any highway, without the order of the Supreme Court of the judicial district in which said highway is situ- ated, made at a special term of said court, after, at least, ten days' notice, in writing, of the intention to make application for said order, shall have been given to the commissioners of highways of the town in which said highway is situated. (As amended by chap. 582, Laws of 1864.) Commissioners to lay out railroad in streets.— Whenever it shall appear, by the application of fifty reputable householders and tax payers of any county in this State, verified upon oath before a justice of the Supreme Court, that there is need in such county of a steam railway or railways for the transportation of passengers, mails or freight, the board of supervisors of said county may, within thirty days after presenta- tion to them of such application duly verified as afore- said, Hppoint five commissioners who shall be residents of the said county and who shall have full power and authority to do and provide all that they are herein- after directed to do and provide, and a certificate of 392 THE LAW OF HIGHWAYS. whose appointment, signed by the chairman and clex-k of such board, shall be filed in the office of the Secre- tary of State, and a duplicate thereof in the office of the clerk of such county. But whenever any such proposed railway shall be wholly within the limits of any city in the State, then such application shall be made only to the mayor of said city, and such mayor shall appoint such commissioners as aforesaid. (Laws 1875, chap. 606.) To determine necessity of railroads. — Said commis- sioners shall, with sixty days after such organization, fix and determine the route or routes for such steam railway or railways, and the said commissioners shall have the exclusive power to locate the route or routes of such railway or railways ovei', under, through or across the streets, avenues, places or lands in such county "except Broadway and Fifth avenue, below Fifty-ninth street, and Fourth avenue above Forty- second street, in the city of New York," and except over, under, through or across those portions of Grand, Classon and Franklin avenues in the city of Brooklyn, lying between the southerly line of Lexington avenue and the northerly line of Atlantic avenue, and over, under, through or across that portion of Classon avenue in said city, lying between the northerly line of Lexington avenue and the southerly line of Park avenue, and except such portions of streets and avenues as are alieady authorized fol' the main line occupied by an elevated or underground railway in actual operation, and excejjt such as are contained in public parks, or occupied by buildings belonging to such county, or to this State, or to the United States, except that portion of the city of Buffalo lying be- tween Michigan and Main streets, and to provide for EAILEOADS IN HIGHWAYS AND STREETS. 393 the connection or junction with, any other railway or bridge, provided that the consent of the owners of one- half in value of the property bounded on, and the con- sent also, of the local authorities, having the control of that portion of a street or highway upon which it is pro- posed to construct or operate such railway or railways be first obtained, or in case the consent of such prop- erty owners cannot be obtained, that the determination of three commissioners, appointed by the general term of the Supreme Court in the district of the proposed construction given after a due hearing of all parties interested and confirmed by the court, that such rail- way or railways ought to be constructed or operated, be taken in lieu of the consent of such property own- ers. {Id. § 4, as amended by Laws 1880, chap. 417.) Right of entry. — Every corporation formed under this act, shall have power to enter upon and under- neath the several streets, avenues, public places and lands designated by the said commissioners, and enter into and upon the soil of the same ; to construct, main- tain, operate, and use in accordance with the plan adopted by said commissioners, a railway or railways upon the route or routes and to the points decided upon, and to secure the necessary foundations and erect the columns, piers and other structures which may be required to secure safety and stability in the construction and maintenance of the railways con- structed upon the plan adopted, by the said commis- sioners, and for operating the same ; except that, noth- ing in this act shall authorize the construction of a railway crossing the track of any steam railway now in actual operation at the grade thereof, or the erection of piers or supports for any elevated railway upon a railway track now actually in ufe in any street or 394 THE LAW OF HIGHWAYS. avenue ; and it shall be lawful to make such excava- tions and openings along the route through which such railway or railways shall be constructed as shall be necessary from time to time ; in all cases the surface •of said streets around such foundations, piers and col- umns shall be restored to the condition in which they were before such excavations were made, as near as may be, and shall avoid any interference with, or change in the watermains, or in the sewers or lamp-posts, ex- cept such changes as may be made with the concur- rence of the proper department or authority ; and in all cases the use of the streets, avenues, places and lands designated by the said commissioners and the right of way through the same for the purpose of a railway or railways as herein authorized and provided, shall be considered and is hereby declared to be a pub- lic use, consistent with the uses for which the roads, streets, avenues and public places are publicly held ; but no siich corporation shall have the right to acquire the use or occupancy of public parks or squares in such county, or the use or occupancy of any of the streets or avenues, except such as may have been designated for the route or routes of such railway, and except such temporary privileges as the proper author- ities may grant to such corporations to facilitate such construction. (Laws 1875, chap. 606, § 26, sub. 5.) Crossing horse-railroad track. — Whenever the route selected by the said commissioners for the construction of said railway shall intersect, cross or coincide with any horse-raUway track occupying the surface of said streets or avenues, the said railway corporation is here- by authorized to remove, for the purpose of construct- ing the said work, the tracks of said horse-railways ; but the same shall be done in such manner as to inter- BAILEOABS IN HIGHWAYS AND STREETS. 395- fere as little as possible with their practical operation or working, and upon the construction of said railway, where Such removals or changes have been made, the same shall be restored as near as may be to the condi- tion in which they were previous to the construction of said railroad. All such removals shall be made at the proper cost and charges of the said corporation. Nothing contained in this act shall authorize any cor- poration formed thereunder to use the tracks of any horse-railway. (Laws 1875, chap. 606, § 35.) Highway commissioners cannot prevent construction of railroad over highways, if the court has given authority. {Baxter v. -S'. S. B. R. Co. 11 Ahb. N. S. 178.) Use thereof relates only to public interest. — The power conferred on a railroad company to enter upon and occupy a public highway, after having obtained the consent of the commissioners or an order of the court, relates only to the public property in the road, and confers the right as far only as the public easement is concerned, leaving the companies to deal with the private rights of individuals in the ordinary mode. The statutes effectually protect the company, if they comply with the conditions, from an indictment, or against any interference with their works as a pub- lic nuisance, on account of their occupation of the highway, but not against claims for private damages arising from the use and occupation of the highway.- {Fletcher v. Auburn, &c. B. B. Co. 25 Wend. 462 Boblnson v. if. T. & Brie B. B. Co. 21 Barb. 612 Williams v. N. Y. Central B. B. Co. 16 N. T. B. 97 Matter of Coney Island Bailroad, 67 N. T. B. 371.) 396 the law of highways. 2. Compensation to Owner of Fee. We have already seen in chapter II, of this work, that an owner of lands is not divested of the fee of the land by the laying out of a highway across it, and that the public do not acquire any greater interest therein than a right of way, and the powers and privileges incident to that right of way, and that subject to this easement, and this only, the rights and interests of the owners of the fee remain unimpaired. It is quite clear, therefore, that the above statutory provisions do not authorize a company to enter upon and appropri- ate a highway, without first obtaining the consent of the owner of the fee, or making a just compensation therefor. Nor has the Legislature power to authorize such company to enter ujion and appropriate a high- way, for purposes other than those to which it has been originally dedicated or laid out, in pursuance of the highway act, without first providing a just com- pensation therefor. {Williams V. JV. Y. Central Hail- road Co. 16 W. Y. H. 97.) It must be regarded, as fully settled in this State, that the occupation of a street or highway, by a rail- road, imposes an additional burden on it, essentially different from the original object of a highway, and entitles the owner of the fee to additional compensa- tion. (Second Presbyterian Society v. Auburn, &c., R. R. Co. 3 Hill,, mi ; Mahonv. N. Y. Central R. R. Co. 24 iV. Y. R. 658 ; Wager v. Troy Union R. R. Co. 25 id. 526.; Matter of tlie Petition of N. Y. C. and H. R. R. R. Co., N. Y. WeeTcly Digest, 171.) And the rule is the same, whether it be a street in a city, or a common highway in the country, except in the city of New York, where the fee of most of the streets is said to be in the corporation. {Id. ; Wager v. Troy EAILKOADS IN HIGHWAYS AND STEEETS. 397 JR. R. Co. supra; see People v. Kerr, 21 N. Y. B. 194.) And in the city of New York the abutting owners have no fee in the street, except an easement to pass and repass, hence an action will not lie for the incon- venience caused by a track laid in too close proximity to his sidewalk. {Kellinger, v. Forty -second Street R. R. Co. 50 JSr. Y. R. 206.) TSTor is he entitled to an in- junction against an elevated railway authorized by the Legislature, because of a failure to make compensation for impairing his easement. {Story y. N. Y. Elevated R. R. Co. 3 All. []Sr. C], 478; see Elevated R. R. Cases, id. 301 ; also see i7. Y. C. of Appeal, Nov. 9, 1880.) The case of Williams v. N. Y. Central Railroad Co., above cited, is a leading and controlling authority on this subject. The plaintiff in that case had dedica- ted certain lands to the public use as a street in the city of Syracuse, but was the owner of the fee of such street as well as of lots fronting thereon. The defend- ants had, under authority of the Legislature, and ex- press consent of the municipal authorities of the city of Syracuse, constructed their railroad upon and along such street, without having acquired the consent of the plaintiff, or having made compensation therefor. It was distinctly held that to occupy a street or highway with railroad tracks, and to use it for railroad purposes is to charge it with a new easement, not within the purposes, intent and legal effect of its dedication as a street or highway to the public ; and that consequently a railroad cannot be built upon a highway without compensation to the owner of the fee. The learned judge who delivered the controlling opinion, examined and explained the various cases in this and other States which seem to hold a contrary doctrine, and showed that nothing which was necessarily decided in 398 THE LAW OF HIGHWAYS. any of them was in conflict with his own opinion. The opinion of the court in the above case, is in per- fect accordance with, and to a great extent based upon the case of Davies v. Mayor, &c. of New York (14 N. T. R. 506), and the case of The Presbyterian So- ciety of Waterloo v. Avbwrn, . &c. , Ji. H. Co. (3 Hill, 567.) In the latter case the declaration was in trespass for entering upon the plaintiff's premises, digging up the soil, and constructing their lailroad ti'ack upon it. The defense was that the locus in quo was a public highway, and that the charter of the company ex- pressly authorized it to construct its road upon and across any highway. The point was therefore presented in the most direct manner possible, and the defense was most emphatically overruled. The language of Chief Justice Nelson is most pertinent and forcible. He says : " but the plaintiffs were not divested of the fee of the land by the laying out of a highway ; nor did the iDublic thus acquire any greater interest therein than a right of way, with the powers and privileges incident to that right ; such as digging the soil and using the timber and other mateiials found within the limits of the road, in a reasonable manner, for the pur- pose of making and repairing the same — subject to this easement, and this only, the lights and interests of tlie owner of the fee remained unimpaired. It is quite clear, therefore, even if the true constmction of the eleventh section accords with the view taken by the counsel for the defendants, that the Legislature had no power to authorize the company to enter upon and appropriate the land in question for purposes other than those to which it had been originally dedicated, in pursuance of the highway act, without first providing a just com- pensation therefor." The same views are reiterated in Mahon v. Nem BAILROABS IN HIGHWAYS AND STREETS. , 399' York Central R. R. Co. (25 N. T. R. 658) ; Wager v. Troy Union R. R. Co. (25 id. 526) ; Carpenter v. The Oswego, &c. R. R. Co. (24 id. 655) ; Craig v. Rochester City, &c. R. R. Co. (39 Barb. 494) ; Fletcher v. Au- hitrn R. R. (25 Wend. 462) ; Lozier v. N. Y. Central R. R. Co. (42 Barh. 465) ; Broiestedt v. South Side R. R. Co. (55 N. Y. R. 220) ; Strong y. City of Brook- lyn (68 id. 1). In Wager v. ^/-oy Uriion R. R. Co. {supra), the complaint was, that the defendants had entered upon and unlawfully withheld the possession of a street in the city of Troy, which was part of the plaintiff's, .land, subject, only to the public easement. The de- fendants had, under authority from the l^egislature,, and the assent of the municipal authorities of the city,, constructed their road on said street without the con- sent of or compensation to the plaintiff. The court decided, very emphatically, that the use of a street for a railroad is a new burden beyond the public easement,, which cannot be imposed by legislative authority, without compensation to the owner of the fee ; that such use, without acquiring the title of the owner of the fee, or his license, is a continuing trespass, and that such owner may maintain ejectment to recover the- land, subject to the public easement as a highway. Where an owner of land makes and files a maj) on which streets and public squares are designated, and thereafter sells lots with reference thereto, the pur- chasers of such lots acquire such an easement therein,, as to authorize an injunction on their application, restraining a railroad from laying its track on the said square without compensation made to them therefor.. {Pratt V. Buffalo City R. Co. 19 Hun^ 30.) Where land has been taken for public highway, and damages assessed back on adjoining land for benefits. 400 THE LAW OF HIGHWAYS. of opening the highway, and thereafter it is sought to subject it to the additional burden of a railroad, the compensation for such additional use should be the same as if the highway had been opened. {Matter of Prospect Park and Coney Island R. R. Co. 16 Hun, 261 ; see 67 N. T. R. 371.) 3. HoESE Railroads in Streets. The ground is taken by Emott, J, who delivered an opinion in People v. Kerr (27 N. Y. R. 188), that there is a difference in respect to property subject to an urban servitude between a city railroad and ordinary railway running from one town to another, and that the use of a street for a horse railroad approximates more closely to ordinary highways, and is consistent with the original dedication of such street. The remarks of the learned judge were, however, wholly obiter, as the point was not involved in the case, and was not passed upon by the court ; the judges concurring upon the grounds stated by Wkight, J., in whose opinion the question was not alluded to. The distinction between horse railroads and those on which steam is the motive power, is not made by any of the cases in the Court of Appeals before cited, but is expressly denied by some of them, and is in conflict with the reasoning and principle of all of them. Thus, in Wager v. Troy Union R. R. Co. the court says : " It is true that the actual use of the street by the rail- road may not be so absolute and constant as to exclude the public also from its use. With a single track, and particularly if the cars used upon it were propelled by horse power, the interruption of the public easement in the street might be very trifling, and of no practical consequence to the public at large. But this consider- EAILKOADS IN HiaHWAYS AND STREETS. 401 ation cannot affect the question of right of jjroperty, or of the increase of the burden upon the soil. It would present, simply, a question of degree in respect to the enlargement of the easement, and would not affect the principle, that the use of a street for the purpose of a railroad imposed upon it a new burden." Even Mr. Justice Southerland, who delivered a dissenting opinion, repudiated any such distinction. He says : "In this case the railroad, I assume, was in- tended to be, and was operated by steam. I cannot see how that affects the question of power, although it is plain, that in a city, a road operated by steam would probably occasion much more serious conse- quential damages to the adjoining lot owners or occu- piers than a horse railroad." The precise question came before the Court of Ap- peals, in Craig v. Rochester City, &c., B. R. Co. (39 Barb. 494 ; affirmed 39 N. T. JR. 494), as to a dis- tinction in this respect between railroads on which the cars are moved by animals, and those on which the motive power is steam.- In this case. Miller. J., says : "I am at a loss to see any apparent distinction in the application of the rule between cases where steam power is employed, and those cases where the road is operated by horse power. It is true there is some difference in the manner in which the road is constructed, and the speed with which its cars are pro- pelled, at times; but there is precisely the same exclu- sive appropriation of the track for the purposes intended in each case to the absolute exclusion of all who may interfere with its mode of operation. * * * The use of a railroad, no matter how it is ope- rated, whether by horse or steam power, necessarily includes, to a certain extent, an exclusive occupation of a portion of the highway, for the track of tlie road, 27 402 THE LAW OF HIGHWAYS. and the running of its cars by the company, and a permanent occupation of the soil. It requires that all other parties shall stand aside, and make way for itsi progress. This is clearly inconsistent with the legal object and design of a highway, which is entirely open and free to all, for purposes of locomotive travel and transpor- tation. The enjoyment of the easement in a highway never confers an exclusive right upon any one who may have occasion to use it, while the laying down of rails, and the employment of cars, is to the detriment and exclusion of all others at the time the cars are running, and a restraint upon a free, undisturbed and general public use. It is an assertion of a right to the possession of the highway by the corporation, and an appropriation of it to private occupation which, by lapse of time, might ripen into a right, and vest a title in the company. ' ' Three of the Judges dissented from this opinion and Mason, J., writes a very able opinion, which space will not permit us to insert, but to which we would refer as containing a full reference to all the leading cases on this subject. Plank-road may lay rails. — By the Laws of 1876, chapter 214, any plank-road or turnpike company shall have power and is authorized to lay iron rails on their road suitable for the use of wagons and vehicles drawn by horses going over its road, except in the counties of Cortland, Orleans, Kings, Oneida, New York and Steu- ben, but nothing contained in the act shall permit or authorize the using of steam on any plank-road or turnpike. Easement not exclusive. — A street railroad does not acquire such an easement in the highway as to prevent KAILKOADS IN IIIGIIWAYS AND STKEETS. 403 another railroad company from laying a track through the same avenue. (iV. Y. C. B. B. v. 4:2d St. B. B. 50 Barb. 285.) Where a street railroad contracts with the city to keep the street in and about its rails sale for the passage of the public, it inclades so much of the street surface outside the rails as was disturbed in laying them, pi'esumably a foot outside the rail. {Mc- MaJion V. 2d Ave. B. B. 75 JY. T. B. 231,) The fact that a street railroad company has agreed to keep a portion of a street in repair, does not deprive the city authorities of the jjower or absolve them from the duty to keep such streets in a safe and proper condition — and even if the city fails to requii-e the company to perform its contract, this is not an objection to an as- sessment upon owners of lots upon the street for neces- sary repair. {People v. City of BrooTdyn, 65 N. Y. B. 349.) 4. Over ok Undek Tuknpikes and Plank Roads. Where land has been taken for a turnpike and after- wards transferred by legislative authority to a railroad company, without compensation by the latter to the. owner of the fee, he may maintain an action for dam- ages resulting from such occupation. {MaJion v. New York Central B. B. Co. 24 N. Y. B. 658.) So the statute permitting a railroad to construct its road oyer or along a plank-road or turnpike does not preclude such i)lank-road or turnpike from recovering of the railroad all damages sustained by it, the company having entered ui)on the plank-road or turnpike vsdth- out causing damages to be assessed under the statute. [ElUcotmlle Plank-road v. Buffalo., &c. Bailroad, 20 Barb. 644 ; Seneca Boad Co. v. Auhtirn, &c. B. B. Co. .■) Hill, 170 ; see Laws 1880, chap. 582.) 404 THE LAW OF HIGHWAYS. Where a railroad crosses a highway, it will not be permitted to cross in any particular way that would render it impracticable to restore the highway to a rea: sonable degree of usefulness. {People v. iV. T. C. & H. B. M. Co. 74 JSr. Y. 302.) "The railroad com- pany must not only make the approaches to a bridge crossing the highway, but it must keep them in suit- able repair. If it does not do so, it may be indicted as a nuisance. (Id.) Tunnels. — By chapter 582 of the Laws of 1880, it is provided that whenever according to the route and plans adopted by any railroad company heretofore or hereafter formed under any special act of the Legisla- ture of this State, or under chapter 140 of the Laws of 1850, entitled "An act to authorize the formation of railroad corporations, and to regulate the same," and all acts supplementary thereto or amendatory thereof, for the building of its railroad, it shall be nec- essary or proper to build said road, or any part of the same underground, or to tunnel or bridge any river or waters, it shall be lawful for said company to enter upon and acquire title to and use such lands under water and uplands, except on or along any canals owned by the State, as shall be necessary for purposes herein mentioned, and they shall have the power to construct, erect and secure the necessary foundations and other structures which may be required for the operating of such road or connecting the same with another, and for maintaining the same, and purchase or acquire, in the manner now provided by law, such land or rights or easements in land along their said route upon, over or beneath the surface thereof, as may be necessary for the building of their said road and making such con nections ; provided, however, that where said ' road EAILROADS IN HIGHWAYS AND STREETS. 403 runs underneath the ground at such depth as to enable said company to tunnel the same, such tunnel shall be so built and at all times kept in such condition as to make the surface of the ground above the same and in the neighborhood thereof firm and safe for buildings and other erection thereon, and, incase surface exca- vations are made, as soon as can be done the surface shall be restored to its former condition, except so far as may be actually required for ventilation of the tun- nel beneath the same or access thereto. Consent of owners. — And provided, further, that whenever such road, or any part of the same, is in- tended to be built within the limits of any city or incorporated village of this State, and to run by means of a tunnel underneath any of streets, roads or public places thereof, the said company, before building the same underneath any of said streets, roads or public places shall obtain the consent of the owners of one- half in value of the property bounded on the line, and the consent of the board of trustees of the village by resolution adopted at a regular meeting and entered on the records of said board, and of the proper au- thorities having control of said streets, roads or public places ; or in case such consent of the owners of prop- erty bounded on the line cannot be obtained, the gen- eral term of the Supreme Court in the district in which such city or village is situated may, upon application, appoint three commissioners who shall determine, after a hearing of all parties interested, whether such rail- road ought to be allowed to be built underneath said streets, roads and public places, or any of them, and in what manner the same may be so built with the least damage to the surface and to the use of the surface by the public, and the determination of said commission- 406 THE LAW OF IIIGITAVAYS. eis, confirmed by the coiirt, may be taken in lien of the consent of said authorities and property owners. Use of tunnel hy other roads. — And provided further, that when any railroad company constructs, under this act, its railroad under any part or within the limits of any city or incorporated village of this State, subject to the provisions and limitations of this act, it shall be lawful for any other railroad company to connect its road therewith at such points or places as such com- pany may elect, and all railroad companies construct- ing their road or roads under the provisions of this act .shall be subject to all the provisions of an act entitled "An act to authorize the formation of railroad com- l)anies and to regulate the same," passed April 2, 1850, and all acts supplementary thereto or amendatory thereof ; and further, at such point or points, place or places, where such connections shall be made by con- necting roads, the railroad companies owning sugh roads shall build, at their joint expense, and for their joint use, such passenger and freight depots, and other accommodations for handling passengers and freight as may be required for the convenience of the public. uch. articles of association shall not be filed in the ofiice of the Secretary of State, until five per cent, on the amount of the stock subscribed thereto shall have been actually and in good faith paid in cash, to the directors named in such articles, nor until there is endorsed thereon, or annexed thereto, an aflBdavit made by at least three of the directors named in such article, that the amount of capital stock required by the first sec- tion has been subscribed, and that five per cent, on the amount has actually been paid in. (Laws 1847, chap. 210, § 2.) Mve per cent. — This section does not require that each subscriber shall pay five per cent, upon his sub- scription for stock before the articles are filed ; but 492 THE LAW OF HIGHWAYS. only that a sum equal to five per cent, on the gros ^ amount of the subscription shall be paid. {Eastern Plank Road Co. v. Vaughan, 14 N. T. R. 546 ; Rens- selaer, &c. Plank Road Co. v. Barton, 16 JSf. Y. R. 457, note.) Proof of incorporation, &c. — A copy of any article of association filed in pursuance of this act, with a copy of the aflidavit aforesJiid 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. (Laws 1847, chap. 210, § 3.) Where a duly certified copy of the articles of asso- ciation and affidavits required are used as evidence, other evidence that the payment of the five per cent, was made in good faith and in cash prior to the filing of the articles is not required, unless something to the contrary is proved. Want of legal organization not to work forfeiture. — Every company formed or organized under the act entitled " an act for the incorporation of companies to construct plank roads, and of companies to construct turnpike roads, passed May 7, 1847 ;" and the several acts amending the same shall be deemed to be a valid corporation, although such company may not have complied with the requirements of such act in the formation and organization of such company, prepara- tory to the construction of its road, and no act or omission on the part of any such company, or of its corporate powers or franchises, unless the same was will- ful and malicious ; but this section shall not affect or PLANK EOADS AND TUENPIKES. 493 impair any right of action heretofore accrued. (Laws 1854, chap. 87, § 6.) Liability of stockholders. — The stockholders of every company incorporated under this act shall be liable, in their 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 such company, over and above such stock, to be recovered of the stockholder who is such when the debt is contracted, or of any subsequent stockholder ; and any stockholder who may have paid any demand against such company, either voluntarily or by com- pulsion, shall have a right to resort to the rest of the stockholders who were liable to contribution ; and the dissolution of any company shall not release or affect the iiability of any stockholder which may have been incurred before such dissolution. (Laws 1847, chap. 210, § 44.) Debts and liabilities. — The debts and liabilities of any company, under this act, shall not exceed in amount, at any one time, fifty per cent, of the amount of its capital actually paid in, and if such debts and liabilities shall at any time exceed such amount, the stockholders who were such at the time any excess of debts or liabilities shall be created or incurred, shall be jointly and severally individually liable for such excess, in addition to their other individual liability, as provided in this act. (Laws 1847, chap. 310, § 45.) Extension of corporate existence. — Any plank road company or turnpike company which shall have been formed under and by virtue of an act entitled "An act to provide for the incorporation of companies to 494 THE LAW OF HIGHWAYS. construct plank roads and of companies to construct turnpike roads," passed May seventh, eighteen hun- dred and forty- seven, and the several acts amendatory thereof, or under and by virtue of an act of the Legis- lature of the State of New York, and which shall have managed and carried on any plank road or turn- pike roads, or which shall own any plank road or turnpike road that has been managed and carried on for twenty years past, upon three miles in length thereof, or not less than one-third of the route named in their original articles of association, may, at any time within five years before the termination of its cor- porate existence, or of the time specified for its dura- tion in its articles of association, continue its corporate existence for a period not exceeding thirty years by first obtaining the consent, by resolution, of a majority of all the members of the board of supervisors of the county or counties in which any such road is located, adopted at any regular or special meeting thereof and by filing and recording in the office of the clerk of the county or counties in which such plank road or turn- pike road is located, within one month before the expi- ration of the corporate existence of such company, and in the office of the Secretary of State, such consent and a statement showing the actual capital expended in the construction of any such pland road or turnpike road, or the price paid on the purchase of any such road or franchise, exclusive of repairs, together with the consent in writing from the person owning two- thirds of the capital stock of such company, and in which shall also be stated the number of years, which they shall desire such corporate existence extended ; also the name of each town or ward through or into which said road passes. Such statement shall be made by the president and treasurer of such company, and PLANK EOADS AND TURNPIKES. 495 they shall annex or indorse thereon their affidavit of the above requirements. (Lavsrs of 1872, chap. 283, § 1, as amended by Laws of 1876, chap. 135 ; of 1878, chap. 121, and of 1879, chap. 253.) Statement where road is abandoned. — In case any part of any plank road or turnpike road, shall have been abandoned, according to the provisions of law, a statement of the actual cost of such remaining part, exclusive of repairs, shall be made as near as may be, and filed and recorded in the same manner as provided in section one of this act. Any further abandonment of any part of any plank or turnpike road, shall only be made by and with the consent of a majority of all the members of thp board of supervisors of the county in which any such road or any part thereof is located, which consent shall be filed with the clerk of said county or counties. (Laws 1876, chap. 135, § 2.) Annual statement, — Hereafter it shall be the duty of any plank road or, turnpike road, that shall avail them- of the provisions of , this law, to annually, on or before the first day of July in each year, make and file a statement in the office of the county clerk of the county or counties through or into which such plank road or turnpike road is located, of the receipts from tolls, and also a statement showing the expenditure on such plank road or turnpike road to maintain and keep the same in repair. (Laws 1876, chap. 135, § 3.) Evidence of existence. — A copy of the consent of such supervisers and stockholders, together with a copy of such affidavit annexed thereto and certified to be a copy by the Secretary of State or his deputy, shall in all courts and places be presumptive evidence of the 496 THE LAW OF HIGHWAYS. corporate existence of such company, for the term therein specified and of the facts therein stated. The corporate existence of such plank road company- shall not be extended, except in accordance with this selves act. {Id. § 4 and 5.) Exceptions. — The provisions of this act shall not apply to the countyies* of Kings, Yates, Queues,* Sen- eca and St. Lawrence. {Id. % 6, as amended by Laws 1879, chap. 253.) Explanatory act. — In any proceedings heretofore taken under the existing provisions of law, or which shall be hereafter so taken, to extend the charter or corporate existence of any plank road or turnpike com- pany, the filing and recording of a copy of the resolu- tion by which the required consent of a majority of the supervisors of any county shall be given, verified either by the certificate of the clerk of the board of supervi- sors, or an affidavit of some members of the board of supervisors, shall be and be deemed a full compliance with the requisitions of law as to tiling and recording such consent ; and the statement of the president and treasurer, and the consent in writing of the stockhold- ers, now required by law to be filed within one month before the expiration of the term of the corporate existence of such company, may both or either of them be made and given, and may also be filed at any time previous to said one month, but within one year as the time during which extension or continuance of such charter or corporate existence may be made ; and where such original statement and consent of stockholders, or either of them, shall be filed in the office of the * So in the original. PLANK EOADS AND TURNPIKES. 497 Secretary of State, a certified copy thereof may be filed in the county clerk's offices, as required by law, and the filing of such copy shall be deemed and held a full compliance with the law in that respect. (Laws 1879, chap. 441, § 1.) By the Laws of 1880, chapter 484, it was made law- ful for any company that through failure to file con- sent, etc., as required by the Law of 1876, had lost the right to extend its corporate existence, to make and file such statement and consent at any time before August, 1880. 2. Management of Company. Board of directors. — 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 y^ear, shall be elected at such time and place as shall be directed by the by-laws of such corporation, and public notice shall be given of the time and place of holding such election, not less than twenty days previous thereto, in a newspaper printed in each county in or through which the road of such company is located. The elec- tion shall be made by such of the stockholders as shall attend for that purpose, either in person or by proxy. All elections shall be by ballot ; and each stockholder shall be entitled to as many votes as he shall own shares of stock ; and the persons having the greatest number of yotes shall be directors. Whenever any vacancy shall happen in the board of directors, such vacancy shall be filled for the remainder of the year by the remaining directors. The directors shall hold their office for one year, and until others are elected in their places. No person shall be a director unless he is a 33 498 THE LAW OF HIGHWAYS. 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 owned for the thirty days next previous to the election. (Laws 1847, chap. 210, § 38.) Number may he reduced. — It shall be lawful for any incorporated plank road or turnpike company at any annual meeting of the stockholders, for the purpose of electing directors, by resolution to reduce the number of directors to not less than three, provided that such reduction shall not take place unless a resolution shall receive the aflSrmative vote of the stockholders holding and owning a majority in amount of the capital stock of the company, as shall appear by its books. (Laws of 1875, chap. 4.) StockTiolders to he directors. —Whenever the whole number of stockholders, in any plank road company or turnpike road company shall not exfceed the number of directors specified in the articles of association of such company, each stockholder shall be in fact and in law a director of such company, and in such case the stockholders shall constitute the board of direc- tors, whatever may be their number, and a majority thereof shall form a quorum for the transaction of business. (Laws 1857, chap. 202.) By section 47, of the act of 1847, chapter 210, the foUovnng sections of the Revised Statutes are made applicable to companies formed under this act : Annual election. — An annual 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 stock- PLANK EOADS AND TUENPIKES. 499 holders present, by a plurality of votes, shall elect by ballot three persons to preside at the next succeeding election. (1 R. S. 578, § 7.) ITow, if not held. — If an annual election shall not be held on the day fixed by law, it shall be held in the same manner and with like effect, on some early day, to be appointed by the directors then in oflBice, who shall give and publish the same notice thereof, as is required in respect to the first election ; and who, after the day on which such election ought to have been held, shall be incapacitated from doing any act as di- rectors, except such as may be necessary to give effect to the election so to be appointed. {Id. § 8.) Duty of presiding officer. — The persons presiding at each election shall, immediately after receiving the ballots, openly estimate the votes, and thereupon make and subscribe a certificate of the result. Of the first election they shall make return to the directors chosen, at their first meeting thereafter. {Id. § 9.) Quorum. — Five directors shall be a board for the transaction of business, and the acts of a majority of the board shall bind the corporation. {Id. § 11 ; see Law 1875, chap. 4, supra.) Vacancies. — The board shall supply every vacancy that may occur in the ofiice of director, and the person chosen shall hold his office until the next annual elec- tion. They shall also supply from the directors every vacancy that shall occur in the office of president, and one of the number present shall be chosen, by a plural- ity of votes, to preside at every meeting of the board 500 THE LAW OF HIGHWAYS. from which the president shall be absent. (1 R. S. 579, §13.) Duties avd powers of directors. — The president and directors shall have power, and it shall be their duty : 1. To meet from time to time, at such place as they may deem expedient. 2. To make such by-laws, rules and regulations, as in their judgment the affairs of the corporation shall require. 3. To appoint such subordinate officers, artists and workmen as they shall deem necessary to execute the business of the corporation. 4. To continue to receive subscriptions of shares, Tintil their whole capital stock shall be subscribed, unless it shall have been ascertained that a less sum will be sufficient to fulfill the ends of the incorporation. 5. To demand at such time and in such proportion as they shall see fit, from the respective stockholders, the sums of money due on their respective shares, under pain of the forfeiture of such shares, and of all previous payments thereon, to the corporation. 6. To declare, by a by-law, in what manner, and under what restrictions, the shares of their capital stock shall be transferable. 7. To construct, complete, and keep in constant re- pair, the road, with all necessary building and appurte- nances, for the making of which they shall be incor- porated. 8. To keep a fair and just account of all tolls re- ceived, and of all moneys disbursed, and, deducting costs and charges, to make and declare a dividend of the clear profits and income of the road, among the stockholders, on the first Tuesday of May and the first Tuesday of November, in every year. PLANK EOADS AND TTJBNPIKES. 501 9. To publisli 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 completed, an account of the expenses of its construction, and to exhibit annually to the Comptroller, an account of the sums arising from the tolls, of the disbursements and of the divi- dends actually made within the year. (1 R. S. 579, § 14.) ISTo company organized under the act entitled, "An act for the incorporation of companies to construct plank roads, and of companies to construct turnpike roads," passed May seventh, eighteen hundred and forty-seven, and the several acts amending the same, shall be deemed to have forfeited any of its corporate powers or franchises by reason of the omission of the inspectors of election for directors in any such com- pany to take the oath prescribed, prior to holding said election. {Id. § 6.) Calls on stock. — The directors of any company in- corporated under this act may require payment of the sums subscribed to the capital stock, at such times, and in such proportions, and on such conditions as they shall see fit, under the penalty of the forfeiture of their stock and all previous payments thereon ; and they shall give notice of the payments thus required, and of the place and time, when and where the same are to be made, at least thirty days previous to the payment of the same, in one newspaper printed in each county in or through which their road is located, or by sending such notice to such stockholder by mail, directed to him at his usual place of residence. (Laws 1847, chap. 210, § 39.) 502 THE LAW OF HIGHWAYS. Shares transferable. — The shares of any company- formed under this act, shall be deemed personal prop- erty, and may be transferred as shall be prescribed by the by-laws of such company. The directors of every such company may, at any time, with the consent of a majority in amount, of the stockholders in such com- pany, provide for such increase of the capital stock of such company as may be necessary to finish the mak- ing of the road actually commenced and partly con- structed, but the whole capital stock of any company shall not exceed five thousand dollars per mile for each mile of the road. (Laws 1847, chap. 210, § 40.) Annual report. — It shall be the duty of the direc- tors of every company formed under this act, to report annually, to the Secretary of State, under the oath of any two of such directors, the cost of their road, the amount of all money expended, the amount of their capital stock, and how much actually expended on such road ; the amount received during the year for tolls, and from other sources, stating each separately, the amount of dividends made, and the amount set apart for a reparation fund, and the amount of indebt- edness of such company, specifying the objects for which the indebtedness accrued. {Id. § 41.) Office of company to ie located. — Within two weeks after the formation of any company, by virtue of this act, the directors thereof shall designate some place within a county in which, according to the articles of association of such company, its road or some part thereof, is to be constructed, as the office of such com- pany ; and shall give public notice thereof, by publish- ing the same in a public newspaper, published in such county, which publication shall be continued once in PLAKK EOADS AND TTJBNPIKES. 503 each, week, for three successive weeks, and shall file a copy of such notice in the ofiice of the county clerk of every county in which any part of such road is con- structed or is to be constructed; And if the place of such ofiice 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, sum- mons, declaration, or other paper required by law to be served on such company, may be served by leaving the same at such ofiice with any person having charge thereof, at any time between nine o'clock in the fore- noon and noon, and between two and five o'clock in the afternoon, of any day except Stinday. {Id. 42.) List of stocTihoMers to he recorded. — 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 show- ing their places of residence, the number of shares of stock held by them respectively, and the time when they respectively became the holders of such shares ; which book shall, from nine o' clock in the forenoon until noon, and from two o'clock in the afternoon until five, on every day except Sunday and the fourth day of July, be open for the inspection of all persons who may desire to examine the same, at the ofiice 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 .604 THE LAW" OF HIGHWAYS. therein, as required by this section, by an entry show- ing to and from whom transferred. Such book shall be presumptive evidence of the facts therein stated, in favor of the plaintiff in any suit or proceeding against such company, or against any one or more stockhold- ■ ers, or against such company and one or more stock- holders jointly. 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 show the same to be inspected and extracts taken therefrom, as provided by this section, shall be deemed guilty of a misdemeanor, and the company shall forfeit and pay to the party injured, a penalty of fifty dollars for every such neglect or refusal, and all the damages resulting therefrom. And every com- pany that shall neglect to keep such a book open for inspection, as aforesaid, shall forfeit to the people the sum of fifty dollars for every day it shall so neglect, to be sued for and recovered in the name of the people, by the district attorney of any county in or through which the road of such company shall be constructed, or shall be according to its articles of association, intended to be constructed, and when so recovered the amount shall be paid in equal portions to every county, for the use thereof. (Laws 1847, chap. 210, §43.) Treasurer to prepare annual statement. — The treas- urer of every plank road company and turnpike com- pany 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 from each source separately ; and also the amount expended PLANK ROADS AND TURNPIKES. 505 during the year, and on what account the expenditures were made, and the items of said expenditures, and shall also state the amount of liabilities of said com- pany, and amount of indebtedness to said company. Which statement he shall exhibit, at all seasonable hours, to any stockholder in said company, on being requested so to do, and in case such treasurer shall re- fuse to exhibit such account or statement as aforesaid, to any stockholder, on request as aforesaid, he shall forfeit, and pay to the person making such request, the sum of five dollars for each offence, to be recovered in any court having cognizance thereof. (Laws 1855, chap. 546, § 8.) Sale of franchise. — Any plank road or turnpike company may, on the consent of the owners of sixty per centum of its stock, sell, transfer, and convey the whole or any part of its rights, property, and fran- chises to any other plank road or turnpike company formed under any general law of this State ; and any conveyance ma!de pursuant to this section shall vest the rights, property and franchises, thereby transferred, in the company to which they are thereby conveyed, for the term of its corporate existence. (Laws of 1879, chap. 44], §2.) Sale to towns. — The board of supervisors have power to authorize any town or towns, when application shall be made therefor by a vote of the majority of the elec- tors voting on the question, at any annual or duly called special meeting to purchase, and any company owning the same to sell the whole or any part of any plank, macadamized or turnpike road, or any toll- bridge in such town or towns, or the franchises thereof for free public use, and to determine the proportion of 506 THE LAW OF HIGHWATS. expense proper to be borne by eacli town, where there shall be more than one town applying for this purpose. (Laws of 1875, chap. 482, § 7.) 3. Application to Supervisors for Leave to Construct Koad, "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 con- struct 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 asso- ciation filed as aforesaid. Public notice of the appli- cation shall be given, by the company, previous to presenting the same to such board, by publishing such notice, once in each week for six successive weeks, in all the public newspapers printed in such county, or in three of such newspapers, if more than three are published in such county, which notice shall specify the time when such application will " be presented to such board, the character of the proposed road, and each town, city and village in or through which it is proposed to construct the same. (Laws 1847, chap. 210, § 4.) Bpecial meetings, Tiow called. — If such company shall desire a special meeting of the board of supervisors for hearing the same, any three member^ of such board may fix the time of such meeting, and a notice thereof shall be served on each of the other super- visors of the county, by delivering the same to him PLANK KOADS ATTD TURNPIKES. 507 personally, or by leaving It at his place of residence, at least twenty days before the day appointed for such meeting. Th6 expenses of such special meeting, and of notifying the members of such board thereof, shall be paid by such company. {Id. § 5.) Owners of land may he Tieard. — Upon the hearing of the said application, all persons residing in such county, or owning real estate in any of the towns through which it is proposed to construct such road, map appear and be heard in respect thereto. Such board may take testimony in respect to such applica- tion, or may authorize it to be taken by any judicial officer of such county, and it may adjourn the hearing from time to time. {Id. § 6.) Assent of supervisors. — If, after hearing such appli- cation, 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 de- scribed 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, aiid to take the real estate necessary to be used for that purpose ; a copy of which order, certified by the clerk of such board, the said company shall cause to be recorded in the clerk' s office of such county, before it shall proceed to do any act by virtue thereof. {Id. § 7.) 4. Commissioners to be Appointed to Lay Out. Whenever any such board shall grant such an appli- cation, it shall appoint three disinterested persons, who 508 THE LAW OF HIGHWAYS. 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'Jsuch road ; the said commissioners 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 description to be made of "such route and of the land necessary to be taken by such company for the construction of such road, and the necessary buildings and gates, they shall subscribe such survey and acknowledge its execution as the execution of deeds is required to be acknowl- edged 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 shall be ap- pointed by the board of supervisors of each county in or through which it shall be proposed to construct such road ; but the whole number of such commissioners shall not be less than three, nor without the consent of such company shall it exceed six, unless the number of counties in or through which it is proposed to con- struct such 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 so much thereof as lies in each county, which shall be PLANK ROADS AND TTJENPIKES. 509 subscribed and acknowledged as aforesaid, and recorded in the county clerk's office of sucli county. Such com- pany shall pay each of the said commissioners two dollars for every day spent by him in the performance of his duties as such commissioner, and his necessary expenses. (Laws 1847, chap. 210, § 8.) Commissioners to determine width. — The commis- sioners appointed by the board of supervisors, as provided in the eighth section of the act to provide for the incorporation of companies to construct plank roads, and of companies to construct turnpike roads, passed May 7th, 1846, 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 vol- untary sale of the same to the company. (Laws 1848, chap. 360,' §1.) 5. Lands, How to be Peoouked. Lands, Tiow to he procured. — Any company formed under the provisions of chapter 210 of the Laws of 1847, entitled "An act to provide for the incorporation of companies to construct plank roads and companies to construct turnpike roads," may procure by purchase or gift from the owners thereof, any lands necessary for the construction of so much of its contemplated road as shall be intended to be constructed in any county. They may also procure by agreement from the officers named in the 26th section of said chapter, the right to take and use any part of any public high- way, necessary for the construction of so much of said road as shall be intended to be constructed in such 510 THE LAW 01? HIGHWAYS. county ; and when any sucli company shall have pro- cured all the lands necessary to be used for the con- struction of its road in such county, and the right to take and use such parts of the public highways in such county as shall be necessary for that purpose, such company may construct so much of its road as shall be intended to be constructed in such county, without making the application mentioned in the fourth section of the said chapter. (Laws 1847, chap. 398, §1.) Survey to be made. — Before proceeding to construct such part of its roa^ as provided in the first section of this act such company shall cause an accurate survey of such part to be made by a practical surveyor, signed by its president and secretary, acknowledged by them as conveyances of real estate are required to be acknowledged in order to be recorded, and recorded in .the county clerk's oflBlce of such county. It shall also, before proceeding to construct such part of its road, procure in 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 is intended to be constructed, authority to construct the same through such other county ; but in such case, the com- missioners appointed to survey and lay out the road of such company, shall not be required to survey and lay out that portion of it intended to be constructed in the county, in which such company shall have pro- ured the lands, and the right to take and use the pub- lic highways necessary for its construction as aforesaid. {Id. § 2.) Where highways are used. — When any such com- pany, by virtue of the provisions of this act, shall PLANK KOADS AND TURNPIKES. 511 have procured the lands, and the right to take and use the parts of any 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 the part thereof -so constructed, as if such applica- tion had been made, and all the proceedings of such company had been had, pursuant to the provisions of the said chapter. {Id. § 3.) Saving clause. — Nothing in this act contained shall be deemed or construed to authorize the laying out or constructing of any road in the cases specified in sec- tion nine, of chapter 210, of the Laws of 1847, nor to authorize' the bridging or obstructing of any stream navigable by vessels or steamboats. {Id. § 4.) Iron rails. — Any plank road or turnpike company shall have power, and is authorized to lay iron rails on their road suitable for the use of wagons and vehicles drawn by horses going over its road, except in the counties of Cortland, Orleans, Kings, Oneida, New York and Steuben. Nothing contained in this act shall permit or authorize the using of steam on any plank road or turnpike. (Laws of 1879, chap. 214.) TTirougTi orchards., cfec— No such road shall be laid out through any orchard, to the injury or destruction of fruit trees, or through any garden, without the con- sent of the owner thereof, if such orchard be of the growth of four years or more, or if such garden has been cultivated four years or more before the laying out of such road, nor shall any such road be laid out 512 THE LAW OF HIGHWAYS. through any dwelling house or building connected therewith, or any yards or enclosures necessary for the use and enjoyment of such dwelling, without the con- sent of the owner, nor shall any such company bridge any stream where the same is navigable by vessels or steamboats, or in any manner that will prevent or endanger the passage of any raft of twenty -five feet in width. (Laws 1847, chap. 210, § 9.) The rules as to laying out turnpike, road or plank road through orchard, gardens, yard, &c., are similar to those in cases of ordinary highways. (See ante, Chap. VIII.) Roadway of turnpike. — No plank road shall be made on the roadway of any turnpike company, without the consent of such company, and any plank road company formed under this act, shall have power to contract with any turnpike company connected therewith, for the purchase of the roadway or part of the roadway, or the stock of such turnpike company, on such terms as may be mutually agreed upon ; and in case the pur- chase of such stock of such turnpike road company, such stock shall be held by such plank road company for the benefit of the stockholders 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 PLANK ROADS AND TUENPIKES. 513 such plank road company. In case of a dissolution of such plank road company, the stockholders of such .plank road company at the time of such dissolution, shall be the stockholders of such turnpike road com- pany, in proportion to the amount of stock held by each in said plank road company ; and, from thence- ^ forward, 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 com- pany, and scrip therefor shall be issued accordingly to each of the last stockholders of such plank road company ; whereupon the officers of such turnpike road company shall be the same in number and power, as provided for in the charter of such turnpike road company, and shall be chosen by such former stock- holders of such plank road company or their assigns, each share of stock as above provided for, entitling the holder thereof to one vote. After such purchase of the stock of such turnpike road company, and prior to the dissolution of such plank road company, the assignment of stock in said plank road company shall carry with it its proportional amount of the stock in such turnpike road company, and entitle the holder thereof to his share of the 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 por- tion of their road on or adjoining the route of which a plank road is actually constructed and used ; but nothing herein contained shall be so construed as to prevent any plank road from crossing any turnpike road, nor any turnpike road from crossing any plank road. (Laws 1847, chap. 210, § 10, as amended 1857, chap. 643.) 84 514 THE LAW OF HIGHWAYS. Company may take possession. — The route so laidi out and surveyed by the said commissioners shall be the route of such road, and such company may enter; upon, take and hold, subject to the provisions of this, act, all such lands as the said survey shall describe as. being necessary for the construction of such road and the necessary buildings and gates. But before enter- ^ ing upon any of such lands the company shall pur- chase the same of the owners thereof, or shall, pur- suant to the provisions of this act acquire the right to. enter upon, take and hold the same. (Laws 1847,. chap. 210, § 11.) Town may buy back purcJiased land. — Whenever' any plank road company shall, for any reason, fail to have its corporate existence extended, such portion of the line of said road as was built over lands which were originally purchased by said company for that, purpose, and was not previously a public highway, shall not be taken possession or control of by the town in which the same may lie, or be claimed or worked as a public highway, until the said town shall pay over to said company the principal sum of the amounts paid by said company for the same, as shown by the 'deeds, of conveyance therefor, given to said company there- for. (Laws 1880, chap. 484, g 2.) Where land cannot be purchased. — If any owner of such land shall, from any cause, be incapable of sell- ing the same, or if such company can not agree with him for the purchase thereof, or if after diligent, inquiry the name or residence of any such owner can- not 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, setting forth the- PLANK BOADS AND TURNPIKES. 515 grounds of the application, a description of tlie lands in question, and the name of the owner, if known, and the means that have been taken to ascer- tain the name and residence of such owner, if his name and residence have not been ascertained, and praying that the compensation and damages of the owner of the lands described in the petition may be ascertained by a jury. Such petition shall be verified by the oath of at least two of the directors of the company, and if it shall allege tliat the name or residence of any owner is unknown, it shall be accompaDied by affidavits proving to the satisfaction of the said 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. {Id. % 12.) Case to he submitted to jury. — On receiving such petition, the said judge shall appoint a time for draw- ing such jury, which shall be 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 drawing shall be served personally upon each owner of lands described in the petition, who shall be known and reside in the county where the lands lie, or by leaving the same at his residence, and such notice shall be served on all other owners in the manner aforesaid, or by putting the same in the post office directed to them at their respective places of residence, and paying the postage thereon, or by pub- lishing the same once in each week for two successive weeks in a newspaper printf^d in such county, the first of which publications shall be at least fourteen days before such drawing. (Laws 1847, chap. 210, §13.) 516 THE LAW OF HIGHWAYS. In case of married women, infants, &c. — In case any lands described in such petition shall be owned by a married woman, infant, idiot or insane person, or by a non-resident of the State, the said judge shall appoint some competent and suitable person, having no interest adverse to such owner, to take care of the interests of such owner in respect to the proceeding to ascertain such compensation and damages. And all such notices as are required to be served on any owner residing in such county shall be served upon the per- son so appointed in like manner as on such owner ; but any person so appointed to take care of the inter- ests of any such non-residents, may be superseded by him. {Id. § 14.) Duty of judge. — The said judge shall attend such drawing and shall decide upon any challenge made to any juror drawn by any person interested. Twenty- four competent and 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 requiring the same, a list of them, and the ballots drawn shall be returned to the box. The said judge, if he shall deem it necessary, may at any subsequent time direct the drawing of an addi- tional number of jiarors, and they shall be drawn, and all proceedings in relation to such drawing shall be had in manner hereinbefore provided. Before proceeding to draw any such jury the company shall furnish to the said judge proof, by affidavit, satisfactory to him, of the time and manner of serving and publishing no- tice 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 satisfaction of the said judge that the provisions of this act in respect to giv- PLANK EOADS AND TUUNPIKES. 517 ing notice of such drawing have been complied with. (76^. §15.) Jurors to he drawn. — From the jurors so drawn the said judge shall draw as many as he shall deem necessary to secure the attendance of twelve ; and he shall issue his precept, directed to the sheriff of such county, either of his deputies, or any constable of such county, to summon the jurors so drawn by the said judge, to attend at the time and place therein specified, to ascertain such compensation and damages. And he may, from time to time, in case of the absence or inability to serve of any juror directed to be sum- moned, draw and direct to be summoned, as aforesaid, as many as may be necessary in his opinion to secure the attendance of twelve. (§16.) Jurors when and how summoned. — Every juror named in any such precept shall, at least four days before the day therein specified for his attendance, -be summoned personally, or by leaving at his residence, a notice containing the substance of such precept. The officer serving such precept shall return it to the said judge, with an affidavit of the manner of serving the same, and of the distance necessarily traveled by him for that purpose ; and such officer shall receive for making such service, six cents a mile for the dis- tance so traveled. {Id. % 17.) Penalty for neglect. — Every juror so summoned, who shall neglect or refuse to attend or serve, in pur- suance of such summons, shall be liable to the same penalties as in case of such neglect or refusal of a per- son duly summoned as a juror in a court of record, and may be excused by the said judge from attending 518 THE LAW OF HIGHWAYS. or serving for reasons for which, such juror might be so excused if summoned as a juror in such, court. Every juror attending shall be entitled therefor to one dollar a day, and his reasonable and necessary expenses, to be paid by the company. {Id. § 18.) Subpoenaing witnesses. — On the application of any party interested, any judge or justice of the peace may issue a subpoena requiring witnesses to attend before sucli jury, and such subpoena shall have the same force and effect, and witnesses duly subpoenaed by virtue thereof, and refusing or neglecting to obey the same, shall be subject to the same penalties and liabilities as though the subpoena were issued from a court of record, in a suit pending therein. {Id. § 19.) Notice to owners of land. — The time and place of meeting of Ifhe 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 owner residing in the county, or within fifteen miles of the lands in question owned by him, personally, or by leaving the same at his resi- dence, at least fourteen days before the time so fixed ; on any other owner residing within this state, and whose residence is known, in the manner aforesaid, or by putting the notice into the post-office, directed to him at his place of residence, and paying the postage thereon ; on any owner residing out of the State, and not within fifteen miles of the lands in question, owned by him, by putting the notice in the post-office, directed and paid as aforesaid, at least forty days before the time so fixed ; and on owners whose residence is un- PLANK E0AD8 AND TUBNPIKES. 519 known, by publishing the notice once in each week, "for six successive weeks, in one of the public newspa- pers printed in the county. {Id. % 20.) Duty of Jury. — The jurors so summoned, shall meet ;at the time and place fixed by the said judge for that purpose, and shall be sworn by him to diligently in- quire and ascertain the compensation 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 Apon to inquire, to the owners thereof, and for taking the same for such road, and faithfully to perform theiT duty as such jurors, accord- ing to law. {Id. § 21.) Duty of Judge. — The said judge shall attend such jurors, shall administer oaths to witnesses called before them, shall take minutes of the testimony given, and admissions of the parties made before them, shall ad- vise such jury as to the law applicable 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 pos- sessed by a court of record 'when trying issues of fact .joined in civil cases. {Id. § 23.) Damages. — The jury, after hearing the parties, and viewing the lands in question, in each case, shall, by a "verdict, ascertain and determine the compensation and •damages that ought to be paid to the owner for the land, to be taken by the company, and for taking the «ame for siich road, and also the amount that ought to be paid to him for the time spent, and necessary ex- penses incurred by him in respect to the proceedings, to ascertain and determine such compensation and 520 THE LAW OF HIGHWAYS. damages, of wMch time and expenses a bill of items shall be presented to the jury, verified by the oath of the owner or his agent, and such 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. (Id. § 23.) Proof of notice. — Such jury shall not proceed to a hearing in any case until the company shall have pro- duced to the said judge, satisfactory proof by affida- vit, 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 tlje parties or their agents, in respect to any such lands, or such compensation or damages, nor shall any such petition contain any such statement or infoimation. [Id. § 24.) • Jury to make certificate.— %xx.c\). 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 discretion of the jury. Every such certificate shall be certified by the judge to have been made by such jury, and shall be recorded in the records of deeds in the clerk' s office of the county where the lands therein described shall lie, at the expense of the company. {Id. % 25.) PLANK ROADS AND TURNPIKES. 521 New trial may he applied for. — Any party inter- ested 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 appli- cation and 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. (Laws 1847, chap. 210, § 27.) Money when to he ^az'^^.— 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 per- son entitled to receive the same, the amount thereof, or shall make a legal tender thereof to him, if he shall refuse to receive the same ; and the company may thereupon enter upon the lands in respect to which such verdict was rendered, and take and hold the same to it and its assigns, so long as it shall be used for the purposes of such a road as such company was formed to construct. {Id. § 28.) Provision in case of non-resident. — If any person entitled to receive the amount of any such verdict be not a resident of this State, or cannot be found therein after diligent search, the company may furnish to the said judge satisfactory proof, by affidavit, of such fact, and he shall thereupon make an order that the amount of such verdict be paid to the treasurer of the county in which the lands lie, in respect to which such verdict was found, for the use of such owner, and that notice of such payment shall be given by publishing the same once in each week, for six successive weeks, in a newspaper published in the county. On satisfactory 622 THE LAW OF HIGHWAYS. proof being made to the said judge, by affidavit, •wnthin tliree months from the time of making the last men- tioned order, of suchpayment and publication, he shall make an order authorizing the company to take and hold the land in respect to which such verdict was rendered, in the same manner and with the same effect as if such payment had been made to the owner per- sonally. The affidavit and orders mfntioned in this section, and all other affidavits 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. {Id. § 29.) When money may he deposited. — If any owner shall apply for a new trial, the company, upon depositing the amount of the verdict sought to be set aside, in, such manner as the said judge shall, upon hearing the parties, direct, in trust that the same, or so much thereof as the said owner shall be entitled to receive, shall be paid to him on demand, and on giving such secu- rity by bond, as the judge shall approve, for the pay- ment to such owner of any sum which he may be enti- tled to receive from the company, in respect to the land in question, by reason of any verdict or the judg- ment of any court, for such compensation, damages, costs and expenses, the company may enter upon and use such lands for the purposes of such road, but the title of the owner thereof shall not be divested until the payment or legal tender to him of the whole amount which he shall be entitled to receive "from the company for such compensation, damages, costs and expenses ; and on such payment or tender being made, PLANK ROADS AND TITRNPIKES. 523 the company shall.be entitled to take and to hold such lands to it and to its assigns, so long as the same shall be used for the purposes of such road as such company was formed to construct. {Id. % 30.) 6. Provisions in Case of Using Highway. Whenever it shall become necessary for any such company to use any part of a public highway for the construction of a plank or turnpike road, the supervi- sors and commissioners of highway of the town in which such highway is situated, or a majority, if there be more than one such commissioner in such town, may agree with such company upon the compensation and damages to be paid by said company, for taking and using said highway for the purpose aforesaid. Such agreement shall be in writing, and shall be filed and recorded in the town clerk' s oifice of such town. In case such agreement cannot be made, the compen- sation 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 individuals. Such compensation and damages shall be paid to the said commissioners, to be expended by them in improving the highways of such town. (Laws 1847, chap. 210, § 26.) If a plank road or turnpike company take posses- sion of a highway, before making compensation there- for, the commissioners of highways have no action for damages. They should proceed, by indictment, for a nuisance or summary removal, or, by action, for the treble damages given by 1 R. S. 526, § 130. {Cornell v. Butternuts Turnpike Co. 25 Wend. 365.) When a plank road or turnpike is constructed along a highway, the company succeed to the rights and 524 THE LAW OF HIGHWAYS. powers of the commissioners of highways, and any inconvenience or damage which an owner of land suf- fers by proper and reasonable repairs or improvements of the highway, is damnum absque injuria. {Bene- dict V. Goit, 3 Barb. 459 ; Dexter v. Broat, 16 Barb. 337.) But such company have no right to exclude the public from the highway, or to interrupt their enjoy- ment of their right of way, while the change is going on. They are bound, like town officers engaged in repairing roads, to carry on the work with as little inconvenience to the public as is reasonably practica- ble ; and if, through their neglect, a person passing with ordinary care and prudence suffers damage, the company are liable. {Ireland v. Oswego. &c. Plank Road Co. 13 N. T. R. 526.) Where a plank road company takes and uses a pub- lic highway for its purposes, the road thus appropri- ated does not cease to be a public highway. The gen- eral right of the public to use it for the purpose of travel, with horses, carriages and on foot, remain unimpaired. The change effected by said act is, the general public, in consideration of the payment of cer- tain tolls, is relieved from the burden of keeping it in repair, and the duties which, in this respect, before belonged to the commissioners of highways and other local officers, is transferred to the plank road corpora- tion. But the local authorities are not thereby ousted of their jurisdiction in respect to encroachments upon highways thus used by plank roads. ( Walker v. Qay- wood, 31 JSf. T. R. 61.) The above provision authorizes the supervisor of the town and commissioners of highways to agree with the turnpike or plank road company upon the compensa- tion and damages to be paid for taking and using a highway. The consideration must be a pecuniary PLANK ROADS AND TURNPIKES. 525 compensation and damages to be paid to the commis- sioners, for the improvement of roads. It does not authorize those officers to release and grant to the com- pany the public right to a highway, without a pecuniary consideration, nor to convey such public right upon conditions. Thus, where the right to take and use a highway for the construction of a plank road, was granted, in consideration of tJie public benefit to result therefrom, and upon conditions that no gate should be erected or tolls demanded on such road, within three miles of a certain point, and the company, after taking possession of the highway under the agreement, pro- ceeded in violation of such agreement, to erect such toll-gates within the prescribed limits, and an action was brought to compel the company to perform it ; it was held, that the action would not lie. {Palmer v. Fort Plain, &c. Plank Road Co. 11 N. T. R. 376.) But when the company, in consideration of the right to take and use forever the highway, agreed to keep the road and all bridges in good repair, according to law, without expense to the town, it was held not to be void for excess of authority by the commissioners ; such officers are not limited to a money compensation, but a consideration inuring to the benefit of the high- ways is sufficient. {FisTikill v. FisKkill, &c. PlanJc Road Co. 22 Barb. 634 ; People v. FisTiMll, &c. Plank Road Co. 27 Barb. 445.) Under an agreement with the supervisor and com- missioners, the company acquire nothing more than an easement in the land. {Northern Turnpike Co. v. ^mith, 15 Barb. 355.) The supervisor and commissioners cannot make the agreement as above provided, without the plank road or turnpike company shall first have obtained the con- sent in writing of at least two-thirds of all the owners 526 THE LAW OF HIGHWAYS. of land, along such highway, who shall actually reside on that part of the highway on which such plank road or turnpike road is to be constructed. (Laws 1850, chap. 71, § 5.) After such turnpike or plank road company has pro- cured by agreement from such supervisor and commis- sioners of the town, the right to take and use any part of the highway necessary for the construction of their road, such company may proceed to construct its road on such highway, without making application to the board of supervisors as was required by section 4, of chapter 210, of the Laws of 1847. (Laws 1847, chap. 398, § 1.) AgreeTnent with commissioners. — Every instrument in writing, purporting to be an agreement between any plank road company and the supervisor or commis- sioners of highways of any town, in pursuance to sec- tion twenty-six of chapter two hundred and ten of the Session Laws of eighteen hundred and forty-seven, and heretofore filed or recorded in any town clerk's office, shall be deemed, and taken in all courts and places to be as valid and effectual an agreement as if the same had been made and executed at a regular meeting of such supervisor and commissioner or com- missioners of highways. The provisions of this sec- tion shall not affect suits now commenced. (Laws 1855, chap. 546, § 3.) Highway, labor on. — Whenever any plank road or turnpike road shall be built in pursuance of the pro- visions of this act, or the act hereby amended, upon the site of an old highway, it shall be the duty of the commissioners of the highways of the town where such road shall be made, to designate some district or PLANK KOADS AND TUENPIKES. 527 districts within their town, on which the highway- labor of the inhabitants residing along the line of said plank or turnpike road shall be performed. (Laws 1849, chap. 250, § 11.) Grading roads. — It shall be lawful for the inhabi- tants residing in any road district in this State, to grade, gravel or plank the road or roads in such district, by anticipating the highway labor of such road district for one or more years, and applying it to the immedi- ate construction of such plank or gravel road, and after the completion of such plank or gravel road, the said inhabitants shall be exempted from the labor so anticipated and^ applied, except so far as their labor may be necessary to keep their said road or roads in repair ; such road to be in all cases free road. {Id. §12.) Highway labor, how assessed. — Every person liable to do highway labor, living or owning property on the line of any plank road of this State, may, on applica- tion, in writing, to the commissioner or commissioners of their respective towns, on or any day previous to the time of making the highway warrants by such commissioners, be assessed the apportionment of high- way labor for such property upon such plank road,, and the commissioner or commissioners may, in their discretion, assess such person for the land or property owned by him in or upon the line of said plank road as a separate road district. (Laws 1853, chap. 626, as amended by Laws 1872, chap. 128.) Duty of highway commissioners. — It shall be the duty of the highway commissioner or commissioners; of such town, to make a -separate list of such persons,, 528 THE LAW OF HIGHWAYS. and such land or property so assessed, as commission- ers are now by law required to make for every separate road district, which shall be delivered to some one of the directors of such road, who shall proceed to have said highway labor worked on such road, in the same manner that overseers of highways are required by law to do. {Id. § 2.) Power of directors. — The said directors shall possess all the powers and have the same authority to compel the performance of such highway labor, or the payment of such highway tax, as the overseers of highways now have by law, and shall make like return to the com- missioners of highways. {Id. § 3.) May commute. — Any person so assessed may com- mute for the tax assessed upon him or his property, by paying the sum now fixed by law, to any of said directors. {Id. § 4.) The court decided in the case of the Buffalo PI. H. Co. {How. P. a. 237), that this power conferred on the commissioners is discretionary ; and that they cannot be compelled to exercise it. When old road is taken. — The following section of the Kevised Statutes relating to turnpike companies, is made applicable to plank road and turnpike com- panies organized under the act of 1847. (Laws 1847, chap. -210. §47.) ' ' Whenever an appraisement shall be made of the lands on any old road, used as such by prescription, on which a turnpike shall be laid out, the appraisers shall set down the value of the soil and of the improve- ments, and the moneys paid by any town for making such improvements in separate sums ; and the sum for PLANK ROADS AND TURNPIKES. 529 whicli 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 commissioner of highways of the town in which such old road shall be situate." (1 R. 8. 584, § 30.) 7. CONSTBUCTION AND RePAIE OF RoADS. Width of plank road. — Every plank road made by virtue of this act, shall be laid out at least four rods wide, and shall be so constructed as . to make, secure and maintain, a smooth and 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 car- riages and other vehicles conveniently and easily to pass each other, and also, so as to permit all carriages to pass on and off where such road is intersected by other roads. (Laws 1847, chap. 210, § 31.) Width of turnpiJee roads. — Every tui-npike 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 iound on the line thereof, and faced with broken stone or gravel, so as to form a hard and even surface, with good and sufficient ditches on each side, wherever the same is practicable. The arch or bed of such road shall be at least eighteen feet wide, and shall be so constructed as to permit carriages and other vehicles conveniently to pass each other, and to pass on and off such turnpike where it may be intersected by other roads. {Id. § 32.) The inspectors, or a majority of them whose appoint- ment is provided for by the thirty-third section of the 35 530 THE LAW OF HIGHWAYS. said act, passed May 7, 1874, are hereby authorized to- determine the distance that the outer limits shall be apart, of any plank road or any turnpike road belong- ing to any company formed under said act, in case the same has not been determined by the commissioners- appointed under the eighth section of said act : Pro- ■dided, That in no case shall the company take more than four rods in width, except by the voluntary sale of the same to the company. (Laws 1849, chap. 250, §7.) When a corporation organized to build a turnpike or plank road is required by its charter to cause its road to be laid out of a certain width, that is a condition which the corporation must perform to entitle it to a continuance of its franchise. The fact that it was laid out upon an ancient highway, furnishes no excuse for the omission to make it of the required width. {People V. FisTikill, &c. Plank Road Co. 21 Pari. 445.). The following sections of the Revised Statutes relat- ing to turnpikes, are made, applicable to companies, formed under this act. (Laws 1847, chap. 210, § 47.) Milestones. — A milestone or post shall be erected and maintained by the corporation on each mile of the road, on which shall be fairly and legibly marked or inscribed the distance of such stone or post from the place of the commencement of the road ; and when such road shall commence at the end of any other road, having milestones or posts, on which the distance from any city or town is marked, a continuation of that distance shall in like manner be inscribed. .(1 -S- -S'. 582, § 21.) Guide-posts. — A guide-post shall also be erected at the intersection of every public road leading into or PLANK ROADS. AND TUENPIKES. 531 from the turnpike, on whicli shall be inscribed the name of the place to which such intersecting road leads, in the direction to which the name on the guide-post shall point. . {Id. % 22.) Directors not to he contractors. — No director of the corporation to which it shall belong, shall be con- cerned, directly or indirectly, in any contract for the making or working of the road, or any part thereof, during the time he shall be director. {Id. § 23.) A contract by a director or directors of a plank road company to build the road is void. {Barton v. Port JacTcson, &c. Plank road, 17 Barb. 397. ) No contractor, for the making of such road or any part thereof, shalj. make a new contract for the per- formance 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. (1 It. S. 582, §24.) Roads may be relaid with gravel, &c. — Any plank road or turnpike company within this State, which shall have once laid their road with plank, may here- after relay the same, or any part thereof, with broken stone, gravel, shells, or other hard material, whereby, they keep a good and substantial road ; such company shall be entitled to collect and receive the same tolls as is provided by chapter 245, of the Laws of 1853. (Laws 1855, chap. 546, § 7.) A turnpike or plank road company have a lawful right to repair their road in such a way as to prevent the effect of rains or freshets, but in the exercise of 532 THE LAW OF HIGHWAYS. that right, they must not injure the owner of adjoin- ing lands. If a damage arises from their negligence in this respect, he may recover against them therefor. {Boughtdn v. Carter, 18 John. 405.) But where a turnpike or plank road is constructed along a high- way, the company succeed to the rights and powers of the highway commissioners, and any inconvenience or damage which an owner of lands sustains by proper and reasonable repairs or improvements of the high- way, is damnum absque injuria. {Benedict v. Goit. 3 Barb. 459 ; Dexter v. Br oat, 16 Barb. 337.) "When there is a failure on the part of a turnpike company to comply with an express requirement of the statute, either as to the width of the road, or the mode of its construction, and a person traveling over it sustains an injury in consequence of such omission, the turnpike company is liable, unless it appears that the plaintiff could have avoided the injury by the exer- cise of ordinary care and prudence. But if the plaint- iff' s injury was not chargeable to any such omission, the action is not sustainable. ( Wilson v. Susque- hanna Turnpike Co. 21 Barb. 68 ; Syracuse t£ Tully Plank Road Road Co. v. People, 66 Barb. 25.) A turnpike company is bound to exercise ordinary care and diligence in the construction and preservation of the bridges on the road, but is not liable for acci- dents not occasioned by want of such care and skill. {Tovmseud v. Susquehanna Turnpike Co. 6 John. 90 ; Wilson V. Susquehanna Turnpike Co. 21 Barb. 68.) A turnpike road company is liable to an indictment, at common law, for suffering their road to be out of repair, notwithstanding that by the terms of its char- ter a specific penalty is provided, if the charter coji- tains no negative words, nor anything from which, it PLANK ROADS AND TURNPIKES. 533 can be inferred that the Legislature intended to take away the common law remedy. {SusqueJianna, &g. Turnpike Co. v. People, 15 WeTid. 267; Syracuse & Tally P. R. Co. v. The People, 66 Barb. 25.) The want of funds is no answer to the indictment, as it might be in the case of public oflBcers. And under the indictment, the company may be punished for con- tracting its road within the limits prescribed by its charter, as a nuisance. ( Waterford, &g. Turnpike Co. V. People, 9 Barh. 161.) The mode of prosecution contemplated by the act (1 R. S. 587, § 47), declaring that the corporation, if con- victed for neglect to repair after notice, shall be fined, is by indictment. {People v. Goshen, &c. Turnpike Road Co. 11 Wend. 597 ; Syracuse, &c. v. The Peo- ple, supra.) 8. Inspectoes to be Appointed. In each county of this State, in which there shall be any plank road, or turnpike road, constructed by vir- tue of this act, there shall be three inspectors of such roads, who shall not be interested in any plank or tuimpike road in such county. They shall be appointed by the board of supervisors of the county, and shall hold their ofiice during the pleasure of such board. Before entering on their duties such inspec- tors shall take and subscribe the constitutional oath of office, and file the same in the office of the clerk of the county. (Laws 1847, chap. 210, § 33.) These inspectors are a different class of officers from the inspectors of turnpikes mentioned in the Revised Statutes and in the act of 1848, chapter 45. The duties of this office are of a much higher grade, requiring a much greater degree of knowledge and skill than is 534 THE LAW OF IIIGHWAYS. required merely for the purpose of determining from time to time whether a road is kept in good traveling condition. These preliminary inspectors must not only be competent judges of the mechanical construction of the roads, but they must be familiar with the require- ments of the laws upon the subject, which are numerous and minute. {Suydam v. Smith, 52 N. Y. R. 383- 386.) To inspect roads, etc. — Whenever any such company shall have completed their road, or any five consecutive miles thereof, it may apply to any two of the inspect- ors to be appointed pursuant to this act, in the county where said road or a part thereof, so completed and to be inspected, is located, to inspect the same ; or, if such inspectors or a majority of them are satisfied on inspec- tion, that the road so inspected is made and completed according to the true intent and meaning of this act, they shall grant a certificate to that effect, which shall be filed in the office of the county clerk. The inspect- ors shall be allowed two dollars per day for their ser- vices, pursuant to this section, to be paid by the company whose road they inspect. (Laws 1847, chap. 210, § 34.) To determine width. — The inspectors, or a majority of them, whose appointment is provided for by the thirty-third section of the said act, passed Hay 7th, 1847, are hereby authorized to determine the distance that the outer limits shall be apart, of any plank road, or any turnpike road, belonging to any company formed under said act, in case the same has not been deter- mined by the commissioners appointed under the eighth section of said act ; provided that in no case shall the company take more than four rods in width. PLANK ROADS AND TURNPIKES. 535 'except by the voluntary sale of the same to the com- pany. (Laws 1849, chap. 250, §^7.) When to receive fees. — ^Whenever a complaint shall ■be made to the inspector or inspectors of any plank road or turnpike in this State, before such inspector ■or inspectors shall act upon such complaint, he or they shall receive from the complainant, the fees provided by law ; and in case it shall appear, upon examination of the road, that the complaint was well founded, the ■amount of said fees shall be paid to the complainant by the company. In case it is determined that the -complaint was not well founded, the complainant shall not be entitled to receive back the fees so paid by him. and in case the new stock, after the directors have given public notice in some newspapers 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 subscribe and pay on the new stock the same per- centage 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 fo^^med a part of the original stock of the company. The iright of way for any such branches or extension shall be acquired by the company in the same manner as is now provided by the law for plank road companies to acquire the right of "way for their roads. (Laws 1849, chap. 250, §1.) The acts of the directors, after the formation of the company, in extending the main line of the road be- yond the point originally specified, and increasing its 560 THE LAW OF HIGHWAYS. capital stock, without the written consent of the per- sons owning two-thirds of the stock, or a majority of the inspectors, &c., as provided by section one of the plank road act, are unauthorized and illegal, and exon- erate the original stockholders from all liability to pay their subscriptions. Nor will the fact that the stock- holder participates in proceedings of the company contemplating the extension, "if it can legally be done," and retains his stock after the extension has been made, and sells it for value, estop him from deny- ing his liability to pay his subscription. {Macedon, &c. Plank Road Co. v. Lapham, 18 Barb. 312.) Constructing branches. — The directors of any plank road company, or turnpike road company, formed under the act passed May seventh, eighteen hundred and forty-seven, entitled "An act to provide for the incorporation of companies to construct plank roads, and for companies to construct turnpike roads " may, with the written consent of the persons owning two- thirds of the stock, construct branches to their main line of road, or extend or change the route of their road, or any part thereof, whereby the public interest will be promoted, through any uncultivated or unim- proved lands. (Laws 1859, chap. 209, § 1.) May take and hold real estate. — The directors of any such company may purchase, take and hold any real estate necessary for the aforesaid pui-poses, and by their agents, servants or other persons employed, may enter upon the lands of any person or persons which may be necessary for said purpose, and may construct their road upon any lands so entered upon, purchased or held. {Id. § 2.) PLANK EOADS AND TURNPIKES. 561 Lands to he surveyed. — Before entering, taking or using any lands for the purpose .of this act, the direc- tors of any such company shall cause a survey and map to be made of the lands intended to be' taken or entered upon, for any of said purposes, and by which the land of each owner and occupant intended to be taken and used shall be designated, and which map shall be signed by the surveyor or engineer making the same, and by the president of such company and acknowledged by them, and be filed in the oflB.ce of the cl^rk of the county. The directors of any such company, by any of its oflBcers, agents, or servants, may enter upon any lands for the purpose of making any examination, and of making survey and map, doing no unnecessary damage. {Id,. § 3. ) Lands, how taJcen. — In case the directors of any such company cannot agree with the said owners and occupants of said land intended to be taken and used for the purposes of this act, the directors may apply to the judge of the county court for the appointment of three disinterested persons, not the owners of real estate in any town through which any land intended to be used for the purposes of this act, or in any town adjoining such town, as .commissioners, by whom the compensation to be paid for the damages suffered or to be suffered by any person or persons, by reason of taking any of said lands for the purposes of this act, shall be ascertained and determined ; and in case of the death, resignation, refusal or disability to act of any of said commissioners, the said judge may appoint others in their places. {Id. § 4.) Commissioners to give notice. — The commissioners shall give at least ten days' written notice of the time 37 662 THE LAW OF HIGHWAYS. and place to hear the parties interested, to be served personally 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 disability of such owner or owners to act thereupon, serving notice in like man- ner upon his or her guardian, or person appointed to act for him or her, as hereinafter directed ; and in case any of said owners shall be married women, insane, infants or idiots, the said judge shall appoint some suitable person to attend in their behalf, before the said commissioners, and take care of their interest in the premises. The commissioners may issue sub- poenas to compel the attendance of witnesses to testify before them, and tliey or any of them, may administer the usual oath to such witnesses. They shall deter- mine 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 by them, and the sum awarded to each owner, or any other person, duly signed or acknowledged by them, and return the same to said judge to be filed on record. {Id. § 4.) Fees of Gmnmlssioners. — Each commissioner is en- titled to receive two dollars per day for his fees, to be paid by the company. {Id. § 5.) Appeal., how taken. — The directors of any plank or turnpike road company, or any party to the proceed- ings of the commissioners, may appeal from any award or determination of the commissioners 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 PLANK ROADS AND TURNPIKES. 563 other party or parties interested in the same ; and the said judge shall examine the report of the commis- sioners, 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 may make such orders in reference to the proceedings of the commissioners and of notice to be given by the parties as may not be inconsistent with this act, and as the nature of the case and the interest of the parties may require. And the said commis- sioners shall again examine ' the case, and the decision then made shall be final. (Id. § 6.) When may enter upon lands. — Upon the payment or legal tender of the compensation determined as before provided, the said directors of any plank road company, or any turnpike road company, shall be en- titled 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 aforesaid, and to hold and use the same for the said purposes, to them and their successors forever. If any person to whom any compensation shall be awarded, or who shall be entitled to the same by virtue of said award, cannot be found, or shall refuse to receive the sum awarded to him or her, then the said payment may be made by depositing the amount of the said award to the credit of said person, in such bank as may be ap- pointed 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 afore- said, payment may be made to his guardian or person appointed as aforesaid, by said judge, and if said guar- dian or person appointed cannot be found, then by deposit in bank, as aforesaid. {Id. § 7.) 564 THE LAW OF HIGHWAYS. Directors to take and Jiold real estate. — The direct- ors of any plank road company or turnpike road com- pany shall take and hold for the ijurpose contemplated in this act, all the lands and real estate which they shall in any way legally enter upon and take by virtue hereof, to them and their successors so long as the same shall be used for a road. {Id. § 8.) Town must pay for land abandoned hy planJc road. — Whenever any plank road company shall, for any reason, fail to have its corporate existence extended, such portion of the line of said road as was built over lands, which were originally purchased by said com- pany for that purpose, and was not previously a public highway, shall not be taken possession or control of by the town in which the same may lie, or be claimed or worked as a public highway, until the said town shall pay over to said company the principal sum of the amounts paid by said company for the same, as shown by the deeds of conveyance therefor, given to said company therefor. (Laws of 1880, chap. 484, § 2.) 14. Powers of PrBCHASERS on Sale under Mort- gage OR Execution. Purcliasers on foreclosure to operate. — Whenever any plank road or turnpike road shall be sold, upon the foreclosure of any mortgage, given by such com- pany upon its road and franchise thereof, to secure the payment of any bond or bonds of such company, it shall be lawful for such purchaser or purchasers there- of, at such sale, and they are hereby authorized to maintain and operate such road, in the same manner, with the same privileges, and subject to the same re- spects, as the company owning such road could do at PLANK ROADS AND TUKNPIKES. 565 the time such sale was made. (Laws 1866, chap. 780, § 1 ; see also Laws 1859, chap. 209, § 9.) When purchasers may form, corporation. — Such purchaser or purchasers, on associating with him or them, not less than four persons, may be formed into a corporation for the purpose of owning and operating such plank road or turnpike road, upon complying, with the requirements of section second of an act en- titled, " An act in relation to the sale of plank roads and turnpike roads on execution, and to provide for the incorporation of purchasers at such sales, into com- panies, to own and operate such roads," passed April fifteenth, eighteen hundred fifty-seven. {Id. § 2.) This act shall apply, as well to any such sale hereto- fore, as hereafter made, saving, however, to the stock- holders of such company or any of them, such rights as they, or either of them, had at the time of the pas- sage of this act, under any such sale heretofore made. {Id. % 3.) When purchasers on execution may operate. — Whenever any plank road or turnpike road shall be sold upon any execution, and shall not be redeemed from such sale according to law, then it shall and may be lawful for the purchaser or purchasers of such road, and they are hereby authorized to maintain and operate the same, in the same manner and subject to the same privileges and restrictions in all respects, as the com- pany owing such road at the time such sale was made. (Laws 1857, chap. 482, § 1.) Purchasers may form association. — Such purchaser or purchasers, on associating with him or them not less than four persons, may be formed into a corporation 566 THE LAW OF HIGHWAYS. for the purpose of owning such plank road or turnpike road, by complying with the following requirements : Articles of association. — They shall severally sub- scribe 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 a turnpike road which the 'company is formed to own and operate ; the amount of 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 con- structed, and each town, city and village into or through which said road shall pass, and its length, as near as may be. Each subscriber to such articles of association shall subscribe thereto Lis name and place of residence, and the number of shares of stock owned by him in said company. The said articles of associa- tion may then be filed in the office of the Secretary of State, and thereupon the persons who have so sub- scribed, and all jiersons 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 same powers and privileges, and be subject to the same provisions as companies organized under the act entitled, "An act to j)rovide 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. {Id. § 2.) plank roads and turnpikes. 567 15. Actions by or Against a Corporation and- Stockholders. Action against. — In any action against any com- pany formed under the provisions of this act, the plaintiff may include as defendants any one or more of the stockholders of 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 indivir dually. 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 prop- erty, 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 stockholders, who shall be defendants in such judg- ment, 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 stock- holders shall be found not to be liable for the demand of the plaintiff or any part thereof, judgment ^hall be given for the stockholders so found not to be liable, but no verdict or judgment in favor of any such stock- holder shall prevent the plaintiff, in such action, from proceeding therein against the company alone, or against it and such defendents who are stockholders as shall be liable for such demand or some portion thereof. Suits may be brought against one or more 568 THE LAW OF HIGHWAYS. Stockholders who are claimed to be liable for any debt owing by the company, or any part of such debt, with- out joining the company in such suit ; but no such suit shall be so brought until judgment on the demand shall have been obtained against the company, and execution thereon returned lansatisfied 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 ver- dict 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 defendant who shall be liable as aforesaid. (Laws 1847, chap. 210, § 46.) Prodf of incorporation. — In any action hereafter brought by or against any plank or turnpike road com- pany, organized under the laws of this State, which shall have been in actual operation, and being in the possession of a road upon which they have taken toll for five consecutive years next preceding the com- mencement of such action, parol proof of such corpor- ate existence and use shall be sufficient for all purposes of the action, unless the opposing party shall set up a claim in his complaint or answer, duly verified, of title in himself to the road, or some part thereof, stating the nature of his title and right to the immediate pos- session and use thereof. (Laws 1855, chap. 546.) Any plank road or turnpike road company that shall avail itself of the provisions of chap. 135, Laws of 1876, to extend its corporate existence, must annually on or before the first day of July in each yeai-, make and file a statement in the office of the county clerk of the county or counties through or into which such plank PLANK ROADS AND TUENPIKES. 569 road or turnpike road is located, of the receipts from tolls, and also a statement showing the expenditure on such plank road or turnpike road to maintain and keep the same in repair. (Laws 1876, chap. 135, § 3.) A copy of the consent of such supervisors and stock- holders, together with a copy of such affidavit annexed thereto and certified to be a copy by the Secretary of State or his deputy, shall, in all courts and places, be presumptive evidence of the corporate existence of such company for the term therein specified, and of the facts therein stated. {Id. § 4.) Within what time action for penalties to he com- Tnenced. — 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 cor- poration, 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 incurred." (Laws of 1850, chap. 71, §3.) Actions against stockholders. — Whenever any judg- ment shall have been recovered by any person in any court of record in this State, against any corporation organized or incorporated under and by virtue of the act entitled " An act to provide for the incorporation of companies to construct plank roads, and of com- panies to construct turnpike roads," passed May seventh, one thousand eight hundred and forty-seven, on a demand arising upon a contract, and for the pay- ment of which the stockholders of such company are liable in their individual capacity as mentioned and declared in the said act, and an execution on such 570 THE LAW OF HIGHWAYS. 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 such corporation is held, or in which the stockholders reside, on behalf of himself or themselves, and of all other creditors of such cor- poration who shall come in and seek relief by and con- tribute to the expense thereof, against all the stock- holders 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 commence- ment of such action or to become due thereafter if contracted or incurred previously ; and any other per- son or party who may have an interest in the event or determination of such action may be made parties de- fendant at the commencement or in any subsequent stage of the action. (Laws 1855, chap. 390, § 1.) An action accrues against a stockholder in a plank road at the same time that it accrues against the com- pany, therefore if an action against a stockholder is not commenced within the period prescribed by the statute of limitations, it is barred. {CoiiJclin v. Furman, 48 N. Y. R. 527.) Judgment, Tiow enforced. — The court in which such action may be pending shall proceed therein as in sim- ilar cases, and shall have jurisdiction and authority to enforce the payment of all arrears due from and owing by any stockholder on the stock subscribed for and owned by him, and shall also ascertain all the debts of such corporation which the stockholders thereof are PLANK BOADS AND TURNPIKES. 571 individually liable to pay, and shall assess and ap- portion the total amount of such indebtedneiss for which the stockholders are by law liable to pay, in- cluding the reasonable costs and disbursements of the plaintiff in such action on and among the respective stockholders or persons liable to pay the same, accord- ing to their individual liability, and shall enforce the payment thereof by each stockholder by its judgment and by execution or executions, in the name of the plaintiflfs in such action, or in the name of the receiver in the action, if one shall have been appointed against the respective stockholders, as in other cases. (Laws 1855, chap. 390, § 2.) , Stockholders, when creditors. — Every stockholder of such corporation who at any time before the commence- ment of such action shall have due or owing to him any demand or claim arising on contract against such corpor- ation, or who may have paid any debt or demand against such corporation either voluntarily or by compulsion, and for which the stockholders of any such corpora- tion are or would be personally liable under the pro- visions of the said act of May seventh, one thousand eight hundred and forty-seven, shall be deemed a cred- itor, and shall be entitled to ajjpear 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 stockholder, to pay the debt of such corporation, to be ascertained and adjudged in said action ; and shall receive payment thereof in the mode or manner that may be directed or ordered by the court in the judgment in such action. {Id. § 3.) Limitation of actions. — Whenever any such action shall have been commenced against the stockholders 572 THE LAW OF HIGHWAYS. 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 proceed- ings therein and the parties thereto, as was exercised by the late court of chancery in this State in proceed- ings against corporations in equity, under and by virtue of article second of title four, chapter eight, part third of the Revised Statutes, so far as the same may be consistent with this act, and any creditor of such cor- poration who shall not, on being duly required by the court, and in such manner as the court shall direct, exhibit his claim and become party to such suit within a reasonable time, not less than six months from the first publication of such notice by order of the court, shall be pi'ecluded 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. {Id. § 4.) Distribution of money recovered. — The court shall cause the moneys so assessed upon and collected from the stockholders of such corporation for the purposes contemplated by this act, by virtue of the judgment in such action, after paying the costs and disbursements of such action, to be applied to the payment and extinguishment of the debts against such corporation, which shall be established and proved in said action to be debts which by law the stockholders of such company are liable individually to pay without prefer- ence, except where such preference exists by law ; and in case any debt so established shall not be due, and the person to whom it belongs or is payable declines to receive the same, in such case the court may make such order as to the deposit or investment PLANK EOADS AND TURNPIKES. 573 of sucli moneys so due to any sucIl creditor, or for Ms nse or benefit, and for the payment thereof when due, as shall be just and equitable. {Id. § 5.) 16. How Discontinued. Road may he surrendered. — The directors of any plank road company or turnpike company, formed under the act passed May 7, 1847, entitled "An act to provide for the incorporation of companies to construct plank roads, and for companies to construct turnpike roads," and every plank road company or turnpike company incorporated under or by any law of this State, are hereby authorized to abandon the whole or any part of their plank road or turnpike road, at either or both ends thereof, whenever the stockholders, holding two-thirds of the stock in said road company shall consent to the same, by a written declaration of the surrender of such part or parts of said road, which said declaration shall be attested by their company seal, and acknowledged by the president and secre- tary 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 sur- rendered, shall cease to be the road or property of the company, and revert and belong to the several towns through which it was constructed, and the said com- pany 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 574 THE LAW OF HIGHWAYS. toll on the remaining part of their plank road or turn- pike road at the rate prescribed in its charter, or by the Laws of this State relating to any such company. (Laws 1854, chap. 87, § 1.) Any plank road which, for a period of five consecu- tive years, shall have heretofore neglected or omitted to exercise its corporate functions shall be deemed dis- solved ; and provided its road-bed or right of way shall have been used as a public highway for the said five years, the same i-hall be deemed and be a public highway to all intents and purposes, and with the same effect as if laid out by the commissioners of highways of towns under the statute, and all Laws relating to the erection, repairing and repaving of bridges, shall apply to such highway. (Laws 1872, chap. 780.) Whenever any turnpike corporation shall become dissolved or the road discontinued, its road shall be- come a public highway and be subject to all legal provisions regarding highways. (Laws 1838, chap. 262, § 1.) But whenever any plank road company shall, for any reason, fail to have its corporate existence ex- tended, such portion of the line of said road as was built ■ over lands which were originally purchased by said company for that purpose, and was not previously a public highway, shall not be taken possession ovcon- trol of, by the town in which the same may lie, or be claimed or worked as a public highway, until the said town shall pay over to said company the principal sum of the amounts paid by said company for the same, as shown by the deeds of conveyance therefor, given to said company therefor. (Laws 1880, chap. 484, § 2.) Turnpike and plank roads are, as a general rule, like ordinary highways, simply easements ; the fee remain- ing in the owner of the soil, and upon their abandon- ment, reverting without further incumbrance. Where PLANK BOADS AJSTD TUBNPIKES. 575 the language of an act, incorporating a turnpike or plank road company, is such as to vest the title to the land over which the road passes, in the company, it must, nevertheless, be considered as vested only for the purpose of the road ; and when the road is aban- doned the land reverts to the original owners. {Dun- ham V. Williams, 36 Barb. 136 ; Hooker v. Utica, &c. TurnpiJce Co. 12 Wend. 371 ; People v. White, 11 Barb. 26 ; see Rogers v. Bradshaw, 20 John. 741 ; Estes V. Kelsey, 8 Wend. 559 ; Heath v. Barman, 50 N. Y. H. 305, and ante p. 30.) When a turnpike company becomes dissolved, or its road discontinued, it is the duty of the commissioner to form it into a road district and to cause it to be worked and kept in repair in the same manner as other public highways, and in case of their neglect or refusal so to do, a mandamus may be had to compel them to perform their duty. Corporation to cease. — Every company incorporated under this act shall cease to be a body corporate : 1. If within two years from the filing of their arti- cles of association, 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 association, such road shall not be completed according to the provisions of this act. (Laws 1847, chap. 210, § 49.) What shall not work forfeiture. — Every company formed or organized under the above act of 1847, and the several acts amending the same, shall be deemed to be a valid corporation, although such company may 576 THE LAW OF HIGHWAYS. not have complied with the requirements of such acts in the formation and organization of such company, and preparatory to the construction of its road, and no act or omission on the part of any such com- pany, or of its stockholders or officers, shall work a forfeiture of its corporate powers or franchises, unless the same was willful and malicious ; but this section shall not affect or impair any right of action heretofore accrued. (Laws 1854, chap. 87, § 6 ; see similar pro- vision. Laws 1850, chap. 71.) Failure to complete road. — No plank road company shall be deemed to have forfeited any pi'ivilege or franchise by reason of not having completed their road the whole distance mentioned or described in their ar- ticles of association. (Laws 1855, chap. 646, § 2.) No plank road or turnpike road company, corpora- tion or association heretofore formed or organized under the act entitled "An act for the incorporation of com- panies to construct plank roads, and companies to con- struct turnpike roads," passed May seventh, eighteen hundred and forty-seven, and the several acts amend- ing the same, shall be deemed invalid, or to have for- feited any of its powers, rights or franchises, by reason of any failure on the part of such company, or the persons organizing the same, to have complied with the requirements of such acts in the formation or organi- zation of such company, as to the number of stock- holders or persons who signed the articles of associa- tion of such company or association, or in the publi- cation of notices in the organization thereof, or by reason of any informality or defect in the signing of such articles of association, or in the publication of the notices aforesaid ; and the stockholders, officers and creditors of every such company, are hereby de- PLANK BOADS AND TURNPIKES. 577 clared to have the same rights, and the stockholders to be subject to tlie same obligation and liabilities as if such company had strictly complied with all the requirements of the law aforesaid, to create and per- fect a complete body corporate ; provided that this act shall only apply to such companies as shall have attempted an organization, and shall have actually constructed a road wholly or in part, according to their articles of association. (Laws 1862, chap. 248, §1.) 38 578 THE LAW OF HIGHWAYS. APPENDIX OF FORMS. No. 1. Oath of Commissiowek. See ante p. 71. Eensselaer County, ss : I. E. D., of the town of Pittstown, in said county, having been elected commissioner of highways of said town, do solemnly swear (or affirm), that I will support the Constitution of the United States and the Consti- tution of the State of New York, and that I will faith- fully discharge the duties of commissioner as aforesaid, according to the best of my ability. And I do further solemnly swear (or affirm) that I have not directly or indirectly paid, offered or promised to pay, contribu- ted, or offered or promised to contribute any money or other valuable thing as a consideration or reward for the giving or withholding a vote at the election at which I was elected to said office, and have not mad© any promise to influence the giving or withholding any such vote. E. D. Sworn, &c. APPENDIX OF FOBMS. 579 No. a. Ceetificate of Justice. See ante p. 71. County of Rbnsselaee, Town of Pittstown. ss : I, Theodore C. Kiclimond., justice of the peace in and for the town of Pittstown, in said county (or town clerk of the town of Pittstown, in said county), do hereby certify, that on the 12th day of November, 1880, personally appeared before me M. M. of said town, who then and there duly took and subscribed the foregoing oath. THEODOKE C. EICHMOND, Dated, &c. Justice of the Peace. No. 3. Bond of Commissioneks. See ante p. 75. Know all men by these presents, that we, A. B., C. D., and E. F., of the town of Grafton, county of Rens- selaer, and State of New York, are held and firmly bound unto G. H., supervisor of said town, in the penal sum of one thousand dollars, to be paid to the said supervisor, or to his successor in office. For which payment well and truly to be made, we bind ourselves, our heirs, executors, administrators and assigns, jointly and severally, firmly by these presents. Sealed with our seals, and dated the 12th day of November, 1880. Whereas, the above named bounden A. B. was, on 580 THE LAW OP HIGHWAYS. the 5t]i day of November, 1880, duly elected commis- sioner of highways of the town of Grafton, in the county of Rensselaer ; Now, therefore, the condition of this bond is such, that if the said A. B. shall faithfully discharge his duties as such commissioner, and shall, within ten days after the expiration of his term of office, pay over to his successor, all moneys remaining in his hands as such commissioner, and render to such successor a true account of all moneys received and paid out by him as such commissioner, without fraud or delay, then this obligation to be void, otherwise to be of full force and virtue. Signatures and Seals. Witness, Add justification and acJcnoioledgement as in Nos. 4 and 5. No. 4. Affidavit of Justification. County op Rensselaer, ss: C. D. and E. F., the sureties named in the foregoing bond, being severally duly sworn, doth each for him- self say, that he is a resident and freeholder (or house- holder) within this State, and worth one thousand dol- lars over and above aU Lis debts and liabilities, and exclusive of property exempt from execution. C. D. E. F. Sworn, &c. APPENDIX OF FORMS. 581 No. 5. Acknowledgment. County of Rensselaer, ss : , On this twelfth day of November, 1880, personally appeared before me C. D. and E. F., to me known to be the persons described in, and who executed the foregoing obligation, and severally acknowledged that they executed the same. R. A. Justice of the Peace. No. 6. Indorsement of Supervisor's Approval. See ante p. 74. I approve of the within bond, and of the sufficiency of the sureties therein named. G. H. Supervisor of the town of Orafton. Dated, &c. No. 7. Notice of Commissioner's Resignation. See ante p. 75. To A. B., C. D., and E. F., Esqrs., Justices of the Peace of the town of Pittstown : Take notice that I hereby tender my resignation of the office of commissioner of highways of the said town of Pittstown, for the following reasons : (Grive reason.) Gr. H. . Dated, &c. 582 THE LAW OP HIGHWAYS. No. 8. Order Appointing Commissioner to Fill Vacancy. See ante p. 73. County of Kensselaer, Town of Pittstown, ' ^ **• Whereas, a vacancy has occurred in the office of commissioner of highways of the town of Pittstown, by reason of the death (or, as the case may he), of George Holmes, heretofore elected to said office from said town. Now, therefore, by virtue of the power vested in us by the statute, in such case made and provided, we the undersigned, three of the justices of the peace of said town, do hereby, in order to fill such vacancy, nominate and appoint Charles Adams, commissioner of highways of said town, to hold his said office until the next succeeding annual town meeting of said town, as by law provided. In witness whereof we have hereto set our hands this tenth day of July, 1880. Signatures. No. 9. Order Ascertaining and Describing Road. See ante p. 83. Whereas, a road, used as a highway, in the town of Pittstown, county of Rensselaer, leading from A. to B., was laid out by the commissioners of highways APPENDIX OF FOEMS. 583 of said town, on the first day of April, 1840, but not suflBlciently described (or has been used as a public highway for twenty years last-past but not recorded). Now, therefore, we the undersigned, commissioners of highways of said town, having met at the house of Royal Abbott, in said town, for the purpose of caus- ing said road to be ascertained, described and entered of record in the town clerk's office, — all the said com- missioners being present, and having deliberated [or all the said commissioners having been duly jQotified to attend this meeting for the purpose of deliberating) on the subject embraced in this order, do hereby order that the said road be ascertained, described and en- tered of record. And the commissioners having caused a survey of the said road to be made, do further order that said road is hereby ascertained and described according to the said survey, being as follows : begin- ning at (insert suney). And it is further ordered that the line above described be the center line of the said road, and that the said road be of the width of three rods. In witness whereof, the said commissioners have hereunto subscribed their names the first day of April, 1880. Signatures. No. 10. Order Dividing Town into Road Districts. See ante p. 93. The undersigned, commissioners of highways of the town of Pittstown, in the county of Rensselaer, hav- ing met and deliberated on the subject embraced in 584 THE LAW OF HIGHWAYS. this order ; all said commissioners being present, and having deliberated thereon {or all said commissioners having been duly notified to attend here for the pur- pose of deliberating thereon), do hereby order that the said town be and the same is hereby divided into ten road districts, as follows, to wit : Road district num- ber one, shall include all that part of said town, lying between, etc., and, etc. ; and all the inhabitants residing in said district, and liable to work on highways, shall be and are hereby assigned to work in said district number one. {If any out of said district be assigned to work therein, insert.) And the following inhabi- tants, residing out of said district, are hereby assigned and required to work therein, to wit: J. C, etc. District number two, etc. , {proceed in liTte manner till all described.) In witness whereof, we have hereto subscribed our names this tenth day of July, 1875. Signatures. No. 11. Commissioners' Annual Account. See ante p. 109. The undersigned, commissioners of highways of the town of Auburn, in the county of Cayuga, hereby ren- der to the board of auditors of said town, their annual account for the year ending February 1st, 1881 : 1. The highway labor assessed in said town for the year ending on the said first day of February, was seven hundred and ten days, and the highway labor performed in the said town during the said year, was five hundred and eighty-nine days, as appears by the APPENDIX OF FORMS. 585 accounts rendered us by the several overseers of Mgh- ways in said town. 2. ' The said commissioners have received, during the said year, the following sums of money for fines and commutations under the statute relative to highways, to wit : Date. From whom receiTed. On what account. Amount They have also received from other sources under said statute, etc. 3. The improvements which have been made on the roads and bridges in said town, during said year, are as follows: {Bpecify improvements.) And the roads and bridges in said town are {give state of them, and specif y whether they are in good repair or otherwise.) 4. The following improvements are necessary to be made on the roads and bridges in said town, to wit : {Specify necessary improvements.) 5. The probable expense of making such improve- ments, beyond what the labor to be assessed this year will accomplish, is by us estimated at $250. Given under our hands, this tenth day of February, 1881. Signatures — Commissioners. No. 12. Statement and Estimate foe Supeevisoe. See ante p. 111. To the supervisor of the town of Watervliet, in the county of Albany : The commissioners of highways of said town do hereby report that the following improvements are •686 THE LAW OF HIGHWAYS. necessary to be made on their roads and bridges in their said town, to wit: {Specify improvements.) That the probable expense of making such improvements is •by lis estimated at $250. Given under our hands, &c. No. 13. Notice op Application fob Additional Appro- priation. See ante p. 113. Notice is hereby given to the electors of the town of -Johnstown, in the county of Fulton, that the commis- sioners of highways of said town are of opinion that the sum of two hundred and fifty dollars, as now al- lowed by law, will be insuffici*^nt to pay the expenses ■actually necessary for the improvement of roads and bridges in said town, and that the additional sum of two hundred and fifty dollars is necessary to make a bridge across the creek, near , (or to repair the bridge, &c., or to improve the road at, &c.) And that we the undersigned, commissioners of highways of said town, shall, at the next annual town meeting of said town, to be held at Johnstown on the tenth day of March next, apply in open town meeting for a vote authorizing the said sum of two hundred and fifty dol- lars, to be raised for the purpose aforesaid. Signed. Dated, &c. APPENDIX or FORMS. 587 No. 14. Okdee Appointing Oveeseees. See ante p. 121. County of Rensselaee, ss: We the undersigned, commissioners of highways of the town of Pittstown, in the county of Rensselaer, having met and deliberated on the subject of this order, {where only two sign, add all the commissioners in said town having met and deliberated thereon, or all the commissioners, &c., having been duly notified to attend said meeting of the commissioners, for the purpose of deliberating thereon,) do, by virtue of the power vested in us by the statute, hereby appoint the following named persons overseers of highways of and for the several road districts in said town, set opposite their respective names, to wit : District 'Eo. 1, Peter Kemper ; district No. 2, George R. Hodgson. Each of said over- seers to hold his said ofiice for and during the term of one year from the 3d day of March, 1881. In witness whereof we have hereto placed our hands this 3d day of March, 1881. Signed. No. 15. Appointment of Oyeeseee in case of Vacancy. See ante p. 122. Town of Pittstown, County of Rensselaer, ^ Whereas, a vacancy has occurred in the ofiice of overseer of highways for road district number eight. 588 THE LAW OF HIGHWAYS. in said town, by reason of the refusal to serve {or as the case may he) of A. B. Now, therefore, by virtue of the power vested in us by the statute in such case made and provided, we, the undersigned, commission- ers of highways of said town, having met and deliber- ated on the subject embraced in this warrant, {where only two sign, add aU the commissioners of highways of said town having met and deliberated, or all the commissioners, &c., having been duly notified to attend this meeting of the commissioners for the purpose of deliberating thereon,) do hereby, in order to fill said vacancy, appoint Asa Shedd, overseer of highways, of and for said road district number eight, in said town. In witness whereof, we have hereto placed our hands this tenth day of July, 1880. Signed. No. 16. Complaint to Commissioners against Ovekseek. See ante p. 122. To the Commissioners of highways of the town of Pittstown : The complaint of A. B., a resident of the town of Pittstown, respectfully showeth that C. D., the over- seer of highways for road district number five, in said town, has neglected and refused- to warn E. F. to work on the highways, in said district, after having been required so to do by the commissioners, or one of them. And the said A. B. hereby requires the said commissioners of highways to prosecute the said C. D., for said offence. Dated, &c. A. B. APPENDIX OF FORMS. 589 Ho. 17. Security to Commissioners for Prosecuting Overseer. See ante p. 122. Whereas, J. Wesley Wilson has made complaint to the commissioners of highways of the town of Bruns- wick, that Henry Baker, overseer of highways for road district number three^ in said town, has neglected and refused to {insert matter complained of.) Now therefore, we, J. D. and W. H., of said town, do hereby undertake, pursuant to the statute in such case made and provided, that we will well and truly indemnify and save harmless, the said commissioners of highways, against any costs which may be incurred in prosecuting for the penalty annexed to such refusal or neglect. Signed. Dated, &c. No. 18. Consent for Railroad to Cross Highway. See ante p. 143. County of Rensselaer, no * Town of Pittstown, f ' ' We, the undersigned, commissioners of highways of said town, do hereby consent that the Troy and Boston Railroad Company may construct a railroad across the public highway leading from {describe highway), pro- vided that the. usefulness of said highway be not im- paired. Given under our hands this tenth day of June, 1880. Signed. 590 THE LAW OF HIGHWAYS. No. 19. Agreement to use Highway foe Plank Road, &c. See ante p. 144. This agreement made this third day of Novem- ber, 1880, between A. B., supervisor of the town of Pittstown, county of Rensselaer, and C. D. and E. F., commissioners of highways of said town, of the first part, and the Northern Turnpike Company of the sec- ond part. Witnesseth, That the said party of the first part, having first become satisfied that at least two-thirds of all the owners of land along the highway (describe it), and who actually reside thereon, have consented in writing to the construction of a turnpike by said party of the second part, on such highway, do for value received, hereby grant and convey to the said party of the second part, the right to use and occupy the pub- lic highway above described, for the purpose of a turn- pike road, so long as the same shall be needed by said party of the second part. In witness whereof, &c. Signed. No. 20. Complaint to Compel Delivery of Books, &c., TO Successor. See ante p. 152. State of New York, ) . County of Rensselaer, \ To the Hon. C. R. Ingalls, Justice of the Supreme Court : A. B. of said county, being duly sworn, makes com- APPENDIX OF FOBMS. 591 plaint against C. D., late commissioner of Mghways of the town of Pittstown in said county, and says : That the deponent was duly elected commissioner of high- ways of said town of Pittstown, at an annual town, meeting of such town, held on the sixth day of March, 1880 ; that he has taken and filed the oath prescribed, by law, and has given the requisite bond. That by virtue of such election he is successor to the' said C. D., late commissioner as aforesaid. That he> has required and demanded that the said 0. D. deliver- over to him, as such successor, all the records, books and papers in his possession or under his control, belonging or appertaining to the said office of commis- sioner of highways. And this deponent further alleges that the said C. D. has refused and neglected so to deliver such records,, books and papers, or any part thereof, and that as this, deponent is informed and believes, said C. D. has in his possession or under his control, the following- records, books and papers appertaining to the said office of commissioner of highways {insert description if known, if not, say so), and that he unjustly and unlawfully withholds the same from this deponent. A. B. Sworn to, &c. No. 21. Okdee Thereupon Granted. See ante p. 152. State of Kew _Yokk,^ ^ ^^ , County of Rensselaer, Complaint having been made to me^ the undersignedl 592 THE LAW OF HIGHWAYS. as follows, to wit : {insert a copy of flie complaint), and being satisfied by the oath of the complainant {add "and other testimony offered" if any such was offered), that the said books and papers {or eitJier, according to the fact), are withheld as aforesaid, I, therefore, pursuant to the provisions of the statute in such case made and provided, do hereby order and direct the said C. D., the person so refusing, to show cause before me at my office in the city of Troy in said county, on the tenth day of May instant at 10 o'clock in the forenoon, why he should not be compelled to deliver the said books and papers (or either as the case may be.) Signature. Dated, &c. No. 22. Affidavit of Delivery. See ante p. 152. State of New York, County of Rensselaer, '' ** ' C. D., of said county, being duly sworn, says, that he is the person mentioned and described as late com- missioner of highways of the town of Pittstown, in said county, in a certain affidavit and complaint made by one A. B. before the Hon. C. R. Ingalls, Justice of the Supreme Court, on the tenth day of May, 1880, and that he has truly delivered over to his successor in said office of commissioner of highways, all the books, records and papers in his custody or appertaining to his said office, within his knowledge. C. D. Sworn, &c. APPENDIX OP FORMS. 593 No. 23. Wareawt to Commit the Person Withholding-. See ante p. 152. The People of the State of New York, to the Sheriff of the county of Rensselaer : Complaint having been made to the undersigned, as follows, to wit : (^Insert a copy of the complaint.^ Whereupon, pursuant to the provisions of the statute, being satisfied by the oath of the said complainant [add, and other testimony offered, if any such was offered), that the said books and papers {or either, ac- cording to the fact) were withheld as aforesaid, the undersigned granted an order, directing the said C. D., the person so refusing, to show cause before the un- dersigned, &c. {as in the order), why he should not be compelled to deliver the said books and papers {or either, as the case may he) at which place and time so appointed {or if at any other time, to which the matter was adjourned, so state), upon due proof being made of the service of the said order, the undersigned pro- ceeded to inquire into the circumstances, and the said C. D. having omitted to make the oath prescribed by the statute in such case made and provided, and it appearing to the undersigned, that the said books and papers {or either of them, to be described) are withheld as aforesaid.* Now, therefore, you are commanded that you take the said C. D., if he may be found in your bailiwick, and commit him to the jail of the said county of Rens- selaer ; there to remain until he shall deliver the said books and papers (or feither or such of them as are withheld), or be otherwise discharged according to law. 39 694 THE LAW OF HIGHWAYS. Witness, C. R. I., justice of the Supreme Court, at the city of Troy, this tenth day of July, 1880. Seal. Signature. ITo. 24. Seakch Warkakt for such Books oePapees With- held. See ante p. 152. The People of the State of New York, to the Sheriff of the County of Rensselaer, or to any Constable of any Town in said County : \A.s in the form above fo*] And the undersigned being required by the said complainant, A. B., to issue this warrant : Now, therefore, you are commanded, in the day time, to search C. D.'s house, situated {insert a particular designation or description of the said house, and of any other place to he searched^, for the said books and papers (or either of them, as the case may be), so with- held, and all other such books and papers as belonged to the said C. D., as commissioner of highways as aforesaid, in his official capacity, and which apper- tained to the said office of commissioner of highways, and seize and bring them before the undersigned. Witness, C. R.,I., justice of the Supreme Court, at the city of Troy, this tenth day of July, 1880. Signature and Seal. APPENDIX OF FOKMS. 595 No. 26. Notice op Appointment of Overseee. See ante p. 156. To E. J. Weatheewax, Of the town of Pittstown : Sir — Take notice that at a meeting of the commis- sioners of highways of the town of Pittstown, held at Tomhannock, on the third day of April, 1880, you were duly appointed by such commissioners, overseer of highways for road district No. 8, of said town, which district includes the following territory : {Insert Boundaries of District.) Yours, &c., CHARLES B. COATES, Town cleric. Dated, &c. No. 26. Notice of Acceptance by Oveeseee. See ante p. 157. To Charles B. Coates, Town clerk of the town of Pittstown : Take notice that I hereby accept the office of over- seer of highways, for road district No. 8, of said town. Yours, &c., E. J. WEATHERWAX. Dated, &c. 596 THE LAW OP HIGHWAYS. No. 27. Assessment by Overseer for Scraper or Plow. See ante p. 163. Whereas the commissioners of highways of the town of EUicott, in the county of Chautauqua, on the 10th day of April, 1870, by writing under their hands, directed and empowered me, Henry Baker, overseer of highways of road district No. 5, in said town, to procure a good and sufficient iron {or steel) shod scraper and a plow {or either separately), for the use of my isaid road district, to be paid for by the moneys arising from commutations 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 pro- vided, do hereby assess the deiiciency of eight dollars and fifty cents aforesaid, upon the inhabitants of the said district, in the proportion they are respectively assessed on the assessment roll of said town ; which said assessment is as follows, viz. : Town Overseer's Names of Inhabitants. Assessment. Assessment Abner Hazeltine $11 90 $1 19 Horace Allen 17 90 179 A. B., Overseer of Dist. No. 5. Dated April 15, 1870. APPENDIX OF FOEMS. 597 No. 28. Overseer's List of Persons Liable to do High- way Labor. See ante p. 166. The unde^rsigned, overseer of highways for road dis- trict No. 3, of the town of Pittstown, hereby certifies that the following is a correct list of all the inhabitants in said district liable to work on the highways : Asa Shedd, Kingsley Worthington, Josiah Slocum, Byron Clark. MARTIN BAUCUS, Overseer. Dated, &c. No. 29. Overseer's Annual Account. See ante p. 169. To tTie Commissioners of Highways of the town of Pittstown, Rensselaer County : The undersigned, overseer of highways of road dis- trict No. 8, in said town, pursuant to law, renders the following annual account : 1. The names of all persons assessed to work on the highways in said road district No. 8, are aS follows : No. of Names. days. John Jones 5 Job Frost 6 2. The names of all those who have actually worked on the highways, with the number of days they have worked, are as follows : 598 THE LAW OF HIGHWAYS. No. of Names. days- John Jones 5 Job Frost 4J 3. The names of all those who have been fined, and the sums in which they have been fined, are as follows : Names. Sums. John Greer $1 50 John Ross 5 00 4. The names of those who have commuted are as follows : Names. Hours. Amount. George Ingraham 10 $1 25 The manner in which the moneys, arising from fines and commutations, have been expended bj' me is as follows : Whole amount received from fines and commutation, as above stated $41 50 Expended for scraper, by order of com- missioners $23 00 Expended for repair of bridge over Muskrat Creek 13 50 36 50 Leaving balance in my hands of $5 00 5. The list of all persons whose names he has re- turned to the supervisor as having neglected or refused to work out their highway assessments, with the num- ber of days and amount of tax so returned for each person, is as follows : {insert copy of list.) The list of all lands which he has returned to the supervisor for non-payment of taxes, and the amount of tax on each tract of land so returned, is as follows : (^insert copy of list.) MARTIN BAUCUS, Overseer of Highways, Dist. No. 8. appendix of foems. 599 Rensseleae County, ss : Martin Baucus, overseer of highways for road Dis- trict No. 8, of the town of Pittstown in said county, being duly sworn, says, that the foregoing account is, in all respects, true. MARTIN BAUCUS. - Subscribed and sworn to before me this 6th day of March, 1880. D. LANCASTER, Gom. of Highways. ' No. 30. COMMISSIONEES' LiST OE NON-EESIDENT LaNDS. See ante p. 174. The following is a list and statement of the contents of all lots, pieces or parcels of land within the town of Grafton, in the county of Rensselaer, owned by non-residents therein. Made this third day of April, 1880, by the commissioners of highways of said town. Value accord- Description of Lands. No. of ing to last No. of Koad acres. ass't roll. daj^s. dlst. E. part, L. 14, T. 5, Range 12, A parcel of land bounded as follows : {Insert iounda- ries minutely) 1,500 $15,000 17 6 Signatures. No. 31. Commissioners' Assessment of HiaiiwAY Labob. See ante p. lid. The undersigned commissioners of highways of the 600 THE LAW OF HIGHWAYS. town of Pittstown, in the county of Rensselaer, hav- ing met at JohnsonviUe, in said town, for the purpose of ascertaining, estimating and assessing the highway labor to be performed in said town the ensuing year ; all the commissioners being present and having delib- erated thereon (or all the commissioners having been duly notified to be present at this said meeting, for the purpose of deliberating thereon), do hereby ascer- tain, estimate and assess such labor as follows : 1. The whole number of days' work assessed for the year is twelve hundred, being at least three times the number of taxable inhabitants' in said town. 2. Every male inhabitant above the age of twenty- one years (excepting ministers of the gospel and priests of every denomination, paupers, idiots and lunatics), there being /owr hundred and fifty -three, is assessed one day {or two days, &c.). 3. The residue of such work being seven hundred and forty-seven days, is as follows, to wit : Names. Ko. of days. Leonard J. Abbott 8 Troy & Boston R. R. Co 37 John Hunter 6 John Snyder 3 The lands in said town owned by non-residents are assessed as follows, to wit : Val*n acoorrt- Descrlption of lands. No. of Ing to last No. of Boad acres. assessment. days. dist. E. part L. 14, T. 5, range 11 (or a parcel of land bounded as follows: Insert boun- daries) 1,500 $15,000 17 6 In witness whereof, we have hereto set our hands this 1st day of AprD, 1880. Signatures. APPENDIX OF FORMS. 601 No. 32. Road Waeeant. See page 183. To John Doe, Overseer of Highways in District No. 11, of the Town of SchaghticoJce, which begins at. The undersigned, Commissioners of highways of said town, having, at a meeting held by them for that purpose, estimated and assessed the highway labor to be performed in said town, as set forth in the annexed schedule, you will therefore cause the several persons whose names are hereunto annexed, to labor on the highways in your district the number of days set oppo- site their names, or commute therefor at twelve and half cents per hour ; two- thirds to be performed by the first day of June next, and the residue by the first day of July next. You are also required to cause all noxious weeds on the highway in your district to be cut down once before the first day of July, and again by the first day of September ; and also to cause the loose stones lying on the beaten track of the road, to be removed at least once in each month, from the 1st day of AprU to the 1st day of December. Should any name in your district be omitted, or new inhabitants move in, you are to annex their names, and to assess them in proportion to their real and personal estate. And whenever the labor in your ward or district has been worked out, commuted for, or returned to the supervisor, and the highways are obstructed by snow, or otherwise, and written notice has been given to you by any two or more inhabitants of the town liable to the payment of highway tax, requesting the removal 602 THE LAW OF HIGHWAYS. of such obstruction, it is and shall be your duty, as such overseer of the highways, and you are required to immediately call upon all persons liable to highway tax in your district, to assist in removing such obstruc- tions, and such labor so called for by you, shall be assessed upon those liable to perform the same, in pro- portion to their original assessments. Also, to deliver to the Supervisor of said town, on or before the first day of October next, a list of all resident landholders residing in your district, who have not worked out their highway assessment or commuted for the same, and a list of all the lands of non-residents, and of per- sons unknovra, which are taxed on your list, on which the labor assessed by the commissioners, or added by you, according to law, has not been performed or com- muted for, and the number of days unpaid for by each, charging for the same at the rate of one dollar and fifty cents per day, which list shall be accompa- nied by your affidavit, duly certified, that you have given the notice required by the 32d, 33d and 34th sec- tions of title 1, chapter 16, part 3, of the Revised Stat- utes, and that the labor for which such residents and such land is returned, has not been performed or com- muted. You are to make return to one of the com- missioners of highways on the second Tuesday next preceding the annual town meeting in your town, within the year for which you are appointed, verified by your oath, containing — 1st. The names of all per- sons assessed to work on the highways in the district of which you are overseer. 2d. The names of all those who have actually worked on the highways, with the number of days they have so worked. 3d. The names of aU those who have been fined, and the sums in which they have been fined. 4th. The names of aU those who have commuted, and the manner in which APPENDIX OF FORMS. 603 the moneys arising from fines and commutations have been expended by you. 5th. A list of all persons whose names you have returned to the supervisor as having neglected or refused to work out their highway assessments, with the number of days and amount of tax so returned for each person, and a list of all lands which you have returned to the siipervisor for non- payment of taxes, and the amount of tax on each tract of land so returned — according to the statute in such ,case made and provided. And you are to pay over to said commissioners all the moneys remaining in your hands, arising from fines and commutations. The law imposes a penalty of ten dollars on the overseers for neglect or refusal to make such return, or to pay over said moneys, which fines the commissioners are bound to enforce in every case of default. Given under our hands this 3d day of December, 1880. CHARLES M. WHEENER, JOSEPH McDERMOTT, THEODORE WELLER, Commissioner of Highways. Names. Days Days Hours Amount . assessed. worked. commuted. of fines. County of Rensselaer, ss : John Doe, overseer of highways of road district N'o. 11, being duly sworn, depose th and saith, that the above account is true, according to the best of his knowledge and belief. JOHN DOE. Subscribed and sworn before me, ) this 4th day of January 1881. f William Stokes, Justice of the Peace. 604 THE LAW OF HIGHWAYS. No. 33. OvEESEEEs' Assessment of Persons Omitted. See ante p. 184. The following named persons having been left out of the list of persons assessed to work on the highways in road district No. 3, in the town of Pittstown, in the county of Rensselaer, {or having become inhabitants of road district No. 3 in the town of Pittstown, in the county of Rensselaer, since the list of assessments of highway labor for said district -was Tnade.) Now, therefore, I, Reuben Miller, overseer of high- ways of said district, according to 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 highway, as others are rated by the commissioners on such list, subject to an appeal to the commissioners, which said assessment is as fol- lows, viz. : Greorge Brownell, four days. James Kinnear, three days. In witness whereof I have hereto set my hand this 9th day of April, 1867. REUBEN MILLER, Overseer. Appeals to Commissionees from Assessment of Overseers. To the Commissioners of Highways of the town of Pittstown, in the county of Rensselaer : The undersigned having been assessed by the over- seer of road district No. 3, in said town, four days' APPENDIX OF FOEMS. 605 labor on the highway, on the ground that he is a new inhabitant of said district {or that Ms name has been omitted by the commissione\:s in said town), and con- ceiving himself aggrieved by said assessment does hereby appeal from said assessment so made by said overseer to the commissioners of highways of said town. A. B. Dated Pittstown, June 10, 1867. No. 34. Appeals by Non-eesident. See ante p. 184. Town oe Pittstow^n, Rensselaer County, ' A. B.,. non-resident owner of lands in said town, considering himself {or C. D., agent of A. B., a non- resident owner of lands in said town, who considers) A. B. aggrieved in the assessment for highway labor by the commissioners of highways of said tovm, upon the following described lands, to wit: {Jiere insert the description as in the list or statement inade by the commissioners'), doth hereby appeal from the assess- ment of said commissioners, to the honorable Jeremiah Eomeyn, county judge of Rensselaer county, that being the county in which said lands are situated. A. B. or A. B. by C. D., Agent. Dated, &c. 606 THE LAW OP HIGHWAYS. No. 35. Commissioners' Consent to Work in Another District. See ante p. 189. Whereas, A. B., a resident of road district No. 7, in the town of Hoosic, in the county of Rensselaer, is assessed six day's labor in district No. 3, in said town, for lands situate therein, therefore at his request we hereby approve of his applying the work so assessed in respect to such lands in said district No. 3, where the same is situated. Signed. Dated. No. 36. Notice to Agent oe Non-Resident. See ante p. 190. To C. D., Agent of A. B., a non-resident owner of lands in the town of Brunswick, in tlie county of ■ Rensselaer : Take notice that A. B., a non-resident of the said town, is assessed four days' labor in road district No. 5, in said town, and that said labor is required to be performed on the road between the house of J. K. and Millville in said district, on the third day of May next and the day following. Yours, &c., J. D., Overseer. Dated, &c. appendix of,foems. 607 Notice in Case of Non-Residents. See ante p. 190. Notice is hereby given, that the highway labor as- sessed on the following described parcels of land in the town of Lansingburgh, county of Rensselaer, owned by non-residents, is required to be performed from the 5th to the 12th days of June next, in road district No. 2 in said town, on the highway leading from — {describe locality with reasonable accuracy.) Owner' names. Description of lands. Assessment. Jared Rust N. pt., L. 10, 100 acres. 10 days. A. B., Overseer of Bist. No. 2. Dated, &c. No. S7. Oveeseee's Complaint foe Refusal to Work, etc. See ante p. 195. '■J Seneca County, ss. : A. B., being duly sworn says, that he is overseer of highways of road district No. 9, in the town of Ovid, in said county ; that on the 17th day of June, 1880, he gave CD., who resides in said district, and is assessed to work on the highways therein, notice to appear on the 19th day of June aforesaid, with a {state what kind of team, or implements were required) on the road {state where') to do such work ; and that the said C. D. did not appear noj furnish any one in his stead {or did not bring such team or implement as was required, stating it; or when he so appeared, remained idle. 608 THE LAW. OF HIGHWAYS. did not worTc faithfully, or hindered others from, working, or whatever the complaint is), and has not paid the commutation money for said work, nor ren- dered a satisfactory excuse for such neglect. A. B. Subscribed and sworn to before ) me this 3d day of July, 1880. f T. E., Justice of t7ie Peace. No. 38. Summons. See ante p. 196. Seneca County, ss. : To any constable of the town of Ovid, in said county : Whereas A. B., overseer of highways of road dis- district No. 9, in said town, has made complaint on oath before me, a justice of peace of the said town, that C. D., a resident of said road district, and assessed to work on the highways therein, after being duly notified to appear on the 19th day of June, instant, with {state what team or implements were required), to do such work ; and that the said C. D. {stating the matter of the complaint), and has not paid the com- mutation money nor rendered a satisfactory excuse. You are, therefore, hereby commanded to summon the said C. D. personally to appear forthwith before me at my office in the said town, to show cause why he should not be fined according to law for such refu- sal {or neglect or misconduct). G. H., Justice of the Peace. Ovid, June 21, 1880. APPENDIX OF FOEMS. 609 No. 38. Constable's Return on Summons. See ante j?. 197. The within summons personally served on Richard Roe, this 22d day of June, 1880, by delivering to and leaving with the said Richard Roe personally a copy thereof, and I know the person so served to be Richard Roe, the person mentioned and described in the above summons. JOHN DOE, Constable. Or, I have served the within summons on Richard Roe, within named, by leaving a true copy thereof, vthis day, at his personal abode. JOHN DOE, Constable. June 22, 1880. No. 39. Judgment Thereon. See a7ite p. 197. In the matter of the complaint of A. B., Overseer of Highways, CD. The said C. D. having been duly summoned to appear before me, J. B. , the justice of the peace to whom the ;said complaint was made, to show cause why he should not be fined, according to law, for the refusal {or neglect, or misconduct), set forth in said complaint ; and no sufficient cause having been shown by said C. D., I do therefore impose upon the said C. D., a fine 40 610 THE LAW OF HIGHWAYS. of three dollars for said offence, together with two dollars for the costs of the proceedings under the said complaint. J. B., Justice of the Peace. Dated, &c. No. 40. Waeeant to Levy Fine. See ante p. 197. Seneca County, ss : To any constable in the town of Ovid, in the said county : You are hereby commanded to levy of the goods and chattels of C. D. four dollars and eighteen cents ; being one dollar for fine imposed by me, for {specify the neglect or misconduct], as set forth in the com- plaint of A. B. overseer of highways of road district No. 3 in the said town ; and also titree dollars and eighteen cents, for the costs of the proceedings on said complaint : and bring the said sum of money before me without delay. G. H., Justice of the Peace. Ovid, June 23, 1880. No. 41. Overseer's Eeturn to Supervisor. See ante p. 198. To the Supervisor of the town of Half moon, county of Saratoga: The following is a list of all the resident land-holders APPENDIX OF FOKMS. 611 residing in district No. 5, in the town of Halfmoon, Saratoga county, wlio have not worked out their high- way assessment, or commuted for the same, with the number of days not worked or commuted for by each, at one dollar and fifty cents per day ; and also a list of all the lands of non-residents and of persons un- known, which were taxed on my list, by the commis- sioners of highways, or added by me according to law, on which the labor assessed by the commissioners has not been paid, or commuted for, and the number of day's labor unpaid at one dollar and fifty cents per day: Owners' names. Desoript'n of Lands. Assessed Value. No. Days. Am't. John Reed, E. pt., L. 14, range 14, T. 9, 75 acres. $400 3 $4.50 NAHUM NEWCOMB, Overseer of Dist. Wo. 5. Affidavit to such List. Saratoga County, ss. : Nahum Newcomb being duly sworn, says, that he is overseer of highways of road district No. 6, in the town of Halfmoon, in the county of Saratoga, and that he has given the notices required by the thirty-second, thirty-third, and thirty-fourth sections of title 1, chap. 16, of part first of the Revised Statutes, and that the labor for which such persons and lands are returned, has not been performed or commuted. N. N. Subscribed and sworn to before ) me this 7th day of Sept. 1880. j J. D., Justice of Peace. 612 THE LAW OF HIGHWAYS. No. 42. Application to Lay out Road. See ante p. 216. To the Commissioners of highways of the town of Clay, in the county of Onondaga : The undersigned, residents of said town {or owning lands in'said town), and liable to be assessed for high- way labor therein, hereby apply to the said commis- sioners of highways to lay out a road in said town, commencing at the north-west corner of alotof land in the possession of Abraham Howan, and running, &c. {describing the proposed road), which proposed road will pass through the inclosed, improved and cultiva- ted lands of L. M., and M. O. Signed. No. 43. Notice of Application to Alter oe Lay out Highway. See ante pp. 217, 229. Notice is hereby given that the subscribers, persons liable to be assessed for highway labor in the town of Wilton, in the county of Saratoga, have applied to the commissioners of highways of the said town, to lay out a highway in said town, beginning {insert a description of the proposed road), which said highway is proposed to be laid through the improved lands of Daniel Coreal and John Ingerson {if necessary for identity, describe the particular lots), and that twelve APPENDIX OF FOEMS. 613 reputable freeholders of the town will meet on the 30th day of June instant, at 10 o'clock^ a. m., at the dwelling house of Daniel Coreal, to examine the ground through which the said highway is proposed to be laid out. Signed, &c. Dated, &c. So. 44, Order for Laying Out or Altering a Highway. See ante p. 217. At a meeting of the commissioners of highways of the town of Duanesburgh, in the county of Schenectady, at Doe's Corners, in the said town, on the 28d day of July, 1880, all the commissioners having met and de- liberated on the subject matter of this order, {or if hut two of the comTTiissioners met, say, all the commission- ers having been duly notified to attend the said meet- ing, for the purpose of deliberating on the subject matter of this order), upon the application of James Thornton, a resident in said town, and Kable to be assessed to work on the highways therein for the lay- ing out or alteration of the highway hereafter to be described, and on the certificate of {twelve) reputable freeholders of said town, convened and duly sworn after due public notice, as required by the statute, certifying that such highway (or such alteration), is necessary and proper ; and notice in writing, of at least three days, having been given in due form of law to S. M. and R. S., occupants of lands through which such highway is to run (or such alteration to be made), that the undersigned commissiont'rs would meet at this time and place, to decide on the application aforesaid ; 614 THE LAW OF HIGHWAYS. and we having heard all reasons offered for or against laying out (or alteration of) such highway, it is ordered, determined and certified that a public highway shall be, and the same is hereby laid out pursuant to said application, whereof a survey has been made and is as foUows, to wit : beginning, &c. {as in the survey), and the line of said survey is to be the center of said high- way, which is to be three rods in width ; or, and the same is hereby so altered as to run from a point thirty feet south of the southeasterly corner of said Neff'' s chair shop, in a straight line ; south, 13 degrees east, till it strikes the present center of the road, thence along the present line thirty rods, and thence continu- ing in a straight line sixty rods to the centre of the present road on the summit of the hill north of Shumla, the said line to be the center of the road, which shall remain of the width of three rods. And it is further ordered, that such parts of the present road as are not included in the above description be, and the same are hereby discontinued. Dated, &c. Signed, &c. No. 45. Notice of Inspector to Toll- Gatherer. See ante p. 535. To John Weidman, Toll-Gatherer of the Jonesville TwrnpiTce Gate No. 3 : Take notice, that a complaint in writing stating that the JonesviUe turnpike near the Esopus creek is out of repair, has been served upon me, accompanied by APPENDIX OF FORMS. 615 the fees provided by law, and you will attend to the repair thereof immediately. THOMAS HYDEMAN, Plank Road Inspector. Dated June 3, 1880. No. 16. Order to Throw Open Toll-Gate. See ante p. 535. To John Weidman, Toll-Oatherer of Oate No. 3, of the Jonesmlle Turnpike : Take notice, that a complaint in writing, stating that the Jonesville turnpike near the Esopus creek is out of repair, having been served on me, accompanied by the fees provided by law, and a notice of the same haying been served on you more than three days pre- vious hereto, and said portion of said road not having been repaired. I hereby order and direct that Gate N"o. 3 be thrown open, and remain so open until fur- ther order. THOMAS HYDEMAN, Inspector of Plank Roads. Dated June 8, 1880."' No. 17. Certificate of Town Clerk. See ante p. 230. Whereas, a proper application has been made by one James Thornton, for the laying out, or alteration 616 THE LAW OP HIGHWAYS. of (describing the road), and a demand for a jury therein has been made on me, and proof having been made of the service of a notice of said demand on A. B., a justice of the peace, on the commissioners of highways, and on each of the owners or occupants of land through which said new road, or alteration, is proposed to be laid, or made, as the law requires. Now, therefore, this is to certify that I did, on the 15th day of June, 1880, at the office of the town clerk of Duanesburgh, county of Schenectady, N. Y., in the presence of said justice (or of said commissioner), deposit in a box the names of all persons residents in said town, whose names are on the lists filed in said office, of those selected and returned as jurors, pur- suant to article two, title four, chapter seven, part three of the Revised Statutes, who are not interested in the lands through which such road is to pass or be located, nor of kin to the owner thereof, and did pub- licly in the presence of such justice, or commissioner,- draw therefrom the following names : THOMAS WILBUR, DENNIS FAHEY, OTTA GARDINEER, WILLIAM MARSH, JOHN BRADY, CHARLES BROWN, MICHAEL McGUIRE, JAMES TROWBRIDGE,. THOMAS PATTERSON, JOHN LINCOLN, PATRICK PHALEN, PATRICK SULLIVAN. And the said twelve reputable freeholders are hereby constituted a jury to certify as to the necessity of the proposed new road (or alteration.) SYLVANS ROBB, Town Clerk, &Cr Dated June 15, 1880. APPENDIX OF FORMS. 617 No. 48. Summons. See ante p. 231. State of New York, ) Town of Dxjanesbtjrgh, | County of Schenectady. ) To any constable of the county of Schenectady, greeting : You are hereby commanded to summon {naming the jurors) to appear at the school-house, near Wilson's Corners, in said town, on the 30th day of June, 1880, at 10 o'clock in the forenoon, then and there to exam- ine and report as to the necessity of {insert the change desired, or a description of the road asked for), and do you notify each of said persons so summoned, that a neglect to so appear will subject him or them to a fine of five dollars, unless a suificient excuse be estab- lished. WILLAED PARNELL, Justice. No. 19. Freeholders Certificate to LAy out Road. County of Schenectady, ) Town of Duanesburgh. j We the undersigned, being freeholders of the town of Duanesburgh, county of Schenectady, N. Y., hav- ing been summoned as a jury as required by law, not interested in the lands through which the road herein- after described, is proposed to be laid {altered), nor of kin to the owners thereof, having appeared at the 618 THE LAW OF HIGHWAYS. school-house near Wilbur's Corners, in said town, on the 30th day of June, 1880, at 10 a. m., were duly sworn by Willard Parnell, Justice of the Peace, to well and truly certify as to the necessity of a highway {insert description). And having personally examined the route of such highway, and heard the reasons offered for or against such proposed route {or alteration), and which highway will pass through the improved {or enclosed or culti- vated) lands of Humphrey Davies, do hereby certify that such highway {or alteration of a highway), is necessary and proper. In witness whereof we have hereto subscribed our names this 10th day of July, 1880. Signatures. No. 50. Notice to Occupants. See ante p. 234. To John Doe : Sir — Please to take notice that we, the Tindersigned, the commissioners of highways of the town of Duanes- burgh, in the county of Schenectady, shall meet at JamesviUe, in the said town, on the 10th day of August, 1880, at 10 o'clock in the forenoon, to decide on the application made by James Thornton, to us, to lay out a highway, commencing at, &c., {here give the descrip- tion, as in the application), and which will pass through your enclosed {or improved or cultivated) lands ; {twelve) freeholders having certified that it is proper and necessary to lay out said highway. Signatures. Dated, &c. APPENDIX OF FORMS. 619 No. 51. See ante p. 239. 'To the Troy & Boston R. B. Co. : Take notice, that the commissioners of highways of the town of Pittstown, in the county of Rensselaer, have duly laid out a highway, commencing at {insert ■description), and that said highway crosses the rail- Toad track of your said company Jive rods north of your depot at Johnsonmlle, and that said road will be opened for use after the expiration of thirty days from the service of this notice upon you. You are therefore required to cause the said highway to be taken across jour said track, as shall be most convenient and useful for public travel, and to cause all necessary embank- ments, excavations and other work to be done on your joad for that purpose, as by the statute provided. Yours, &c.. Dated, &c. Signatures. No. 52. Notice to Remove Fences. See ante p. 246. Whereas, the undersigned, commissioners of high- ways of the town of Wilton, in the county of Saratoga, have laid out a public highway, by an order dated November 25, 1880, and duly filed with the town clerk of said town, which said road passes through enclosed lands, owned (or occupied) by you ; and, whereas, our determination in the matter of laying out such road has not been appealed from : Now, therefore, please 620 THE LAW OF HIGHWAYS. to take notice, that you are required to remove your fences from within the bounds of said highway, within sixty days after service hereof. Yours, &c. Dated, &c. No. 53. Application to Discontinue Old Road. See ante p. 257. To the Commissioners of Highways of the town of Volney, in the county of Oswego : The undersigned, residents of said town, and liable to be assessed for highway labor therein, do hereby apply to you, the said commissioner, to discontinue the old road in said town, beginning, &c. {insert gen- eral description) on the ground that said road has become useless and unnecessary. Signatures. Dated, &c. No 64. Consent of Owner to Lay Highway in Orchard, &o. See ante p. 221. Whereas, a highway is proposed to be laid out by the commissioners of highways of the town of Graf- ton, in the county of Rensselaer, on the application of William I. Baucus, commencing at {insert description), and which will run through my orchard ; therefore, I APPENDIX OF FORMS. 621 do hereby consent that such road be so located, opened, worked and used through my orchard. Witness my hand and seal this 13th day of June, 1880. A. B. ko. 54-A. TfoTicE OP DisooNTiwrrANCE OF Old Koad. See ante p. 258. To John Doe: Sir-^Take notice, that Thomas Wilbur and Eugene Simpson have made application to discontinue {insert general description) and that a jury of freeholders wiU be convened at the house of William Johnson, on the 10th day of July, 1880, at 10 a. m., then and there to certify as to the uselessness of said highway. Dated July 3d, 1880. Signatures. No. 65. Freeholders' Certificate to Discontinue a Road. See ante p. 268. The subscribers, twelve disinterested freeholders of the town of Glen, in the county of Montgomery, hav- ing met at the Wilson House, in the said town, in pur- suance of a summons from the commissioners of high- ways of the said town, to examine and certify in regard to the propriety of discontinuing the highway from {describe the highway to be discontinued), and having been duly sworn, and having viewed the said 622 THE LAW OF HIGHWAYS. road, do therefore certify that we are of opinion that the same is useless and unnecessary. In witness whereof, we have hereto set our handa^^ this 1st day of August, 1880. Signatures. No. 56. Notice of Meeting of Commissioners. See ante p. 256. To John Doe : Sir — Take notice, that Thomas Wilbur and Eugene Simpson having applied to have {insert description) discontinued, and a proper notice of the convening of the jury to decide as the usefulness of said road, hav- ing been served on all owners and occupants residing upon lands through or along which the said highway passes, six days prior to the convening of said jury, and said jury having certified that said highway is useless and unnecessary. Now, therefore, take notice, that the commissioners of highways of , will hold a meeting on the 1st day of August, 1880, at the WUson House, in the town of Glen, to hear and determine such application.. Signatures. July 20, 1880, Ko. 57. Okdee for Discontinuing a Eoad. See ante p. 263. At a meeting of the commissioners of highways of APPENDIX OF POEMS. 623 the town of Glen, in the county of Montgomery, at the Wilson House, in said town, on the 1st day of August, 1880, all the commissioners having met and de- liberated 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 this order), upon the application of A. and B. of said town, for the discontinuance of the road hereinafter described, and on the certificate of twelve disinterested freeholders, duly summoned and sworn, who have in due form certified that said road is useless and unnecessary ; and the said commissioners having caused a survey of said road to be made as follows, viz. : {here insert the survey or description.) It is ordered and determined by the said commissioners, that the said road be and the same is hereby discon- tinued. In witness whereof, we have hereto set out hands this 1st day of August, 1880. Signatures. No. 58. Agkeement oe Ownek and Commissioners as to Damages. See ante p. 268. Whereas, the commissioners of highways of the town of Pittstown, in the county of Rensselaer have, by an order dated, the 10th day of January, 1880, laid out a highway in said town, beginning {describe it as in the order), which said highway passes through the improved lands of John Clark. Now, therefore, the damages of the said John Clark, by reason of the lay- 624 THE LAW OF HIGHWAYS. ing out of said highway, are hereby ascertained by agreement of the said John Clark, and the said com- missioners of highways, at the sum of one hundred dollars. In witness whereof we, the said parties, have hereto set our hands this 12th day of January, 1880. Signatures. No. 69. Release op Damages by Owner. See ante p. 268. A highway having been laid out, on the day of the date hereof, by the commissioners of highways of the town of Rome, in the county of Oneida, on the appli- cation of John W. Tallmadge, through my improved lands, commencing at, &c., {insert the description of the road as in the order). Now, know all men by these presents, that I, the said Henry Palmer, for value received, do hereby re- lease all claim to damages by reason of the laying out and opening of the said highway. Witness my hand and seal the 1st day of December, 1880. HENRY PALMER, (l. s.) Ko. 60. Application to County Court to Appoint Commis- sioners TO Assess Damages. See ante p. 269. To the County Court of Rensselaer Covmty : Whereas the commissioners of highways of the town APPENDIX OF FOKMS. 625 of Pittstown, in said county, by an order dated Sep- tember 20th, 1880, have laid out a highway in said town, beginning, {insert description as in tlte order.) Now, therefore, we the undersigned commissioners of highways of the said town, do hereby apply for the appointment of commissioners to assess the damages occasioned by the laying out of said highway, pursuant to the statute in such case made and provided. Dated, &c. Signatures. No. 61. Notice oe Meeting of Commissioners to Assess Damages. See ante p. 269. To John Carroll: Sir — Take notice that the commissioners apj)ointed by the county court by an order bearing date on the 25th day of January, 1880, to assess the damages occa- sioned by a highway laid out by the commissioners of highways of the town of Pittstown, in the county of Rensselaer, beginning, {insert description of road), will meet for the purpose of makiijg such assessment, at the house of Asa Shedd in said town, on the 13th day of February next. Signature. Dated, &c. 41 626 THE LAW OF HIGHWAYS. No. 62. Okder Appointing Commissioners to Assess. See ante p. 269. At a term of the County Court, of Albany County, held at the Court House in the city of Albany, in said county, on the 10th day of September, 1880. Present — Hon. Thomas J. Van Als'iyne, County Judge. In the matter of the application of | the Commissioners of Highways of the town of Watervllet. On reading and filing the the application of E. G., H. B., and N. B., commissioners of highways of the town of Watervliet, in said county, setting forth the laying out of a highway in said town, beginning {insert description), and praying the appointment of commis- sioners to assess the damages occasioned thereby, it is ordered that F. G.,, H. J. and L. M., of said town, be and they are hereby appointed such commissioners, whose duty it shall be to take the oath of office pre- scribed by the constitution, and to proceed on receiv- ing at least six days' notice of the time and place, to meet the said highway commissioners and take a view of the premises, hear the parties and such witnesses as. may be offered before them, and to administer oaths to such witnesses ; and they shall all meet and act, and they or a majority of them shall assess all dam- ages which may be required to be assessed on the said highway, and shall deliver their said assessment to the said commissioners of highways. APPENDIX OF FORMS. 627 Tfo. 63. Assessment by Commissioneks. * See page 275. Whereas, the undersigned, Walker Gilbert, Daniel Gaylor and Ira Wood were appointed by an order of the county court,' of the county of Albany, made on the tenth day of September, 1880, on the application of E. G., H, B. and N. B. commissioners of highways of the town of Wilton, in said county, commissioners to assess the damages occasioned by the laying out of a highway in the said town, beginning {insert descrip- tion as in the order), which highway passes through the improved lands of Peter P. Deyoe, Daniel Coreal and John Ingerson, and was laid out by the commis- sioners of highways of the said town, by an order dated November twenty-fourth, 1880. Now, therefore, we, the said commissioners, having taken the oath of office prescribed by the constitution, and having all met and acted on the matter commit- ted to us, at the residence of Peter P. Deyoe, in said town, this twenty-fourth day of November, 1880, pur- suant to a notice of said commissioners of highways, of at least six days, according to law, and having taken a view of the premises, and heard the parties and such witnesses as have been offered before us ; do, thereupon, determine and assess the damages required to be assessed on the said highway, as follows, viz. : We assess the damages of Peter Deyoe at one hundred dollars ; we assess the damages of Daniel Coreal at one hundred and fifty dollars, &c. Witness our hands this 24th day of November, 1880. Signatures., 628 THE LAW OF HIGHWAYS. No. 65. Notice to Adjoining Town Clerk of Drawing of Jury. See ante p. 278. 7b J. K., town cleric of the town of Nassau, in the county of Rensselaer : Take notice that the undersigned, feeling himself aggrieved by the assessment of certain commissioners appointed by the county court of said county to assess damages occasioned by the laying out of a highway in the town of Berlin, in said county, and having asked for a jury to re-assess such damages, such jury will be drawn by you at the town clerk' s office in said town of Nassau, on the 25th day of September, 1880, at ten o'clock in the forenoon of that day. Dated, &c. Signatures. No. 66. Town Clerk's Certificate of Drawing of Jury. See ante p. 278. Rensselaer County, ss : I, J. K., town clerk of the town of Nassau, in said county, do hereby certify that the following twelve names were this day drawn by me from a box contain- ing the names of all such persons now residents of said town, whose names are on the last list filed in the town clerk's office, of said town, of those selected and re- turned as jurors, pursuant to the Revised Statutes, who are not interested in the lands through which a road in the town of Berlin, was laid out by the com- APPENDIX OF FORMS. 629 missioners of highways of said last mentioned town, on the 28th day of September, 1880, 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 high- way. A. B., E. F., C. D., G. H., &c., inserting the 12 names. Witness my hand this 3d day of October, 1880. J. K., Town clerk. No. 67. kotice when" the commissioners or parties are Aggrieved or Dissatisfied. See ante p. 276. Notice is hereby given that I, John Myers, conceiv- ing myself aggrieved by {or we, the commissioners of highways, feeling dissatisfied with) the assessment of damages made by Henry Fowler, H. Clay Bascom and John Serviss, commissioners appointed by the county court of the county of Rensselaer, to assess damages occasioned by the laying out of a highway in the town of Berlin, in said county, beginning {insert descrip- tion), which said assessment was filed in the office of the town clerk of the said town, on the 10th day of September, 1880, do hereby ask for a jury to re-assess the said damages, and such jury will be drawn at the clerk's office of the town of Nassau, in said county, adjoining the said town of Berlin, on the 25th day of September, 1880, at ten o' clock in the forenoon of that day, by the town clerk of the said town of Nassau. Signatures. Dated. 630 THE LAW OF HIGinVAYS. No. C7— A. Summons for Jury. See ante p. 278. Rensselaer County, ss : To Walter Scott, one of tlie constables oftJie toxon of Nassau, in the said county : You are hereby directed to summon {name the twelve persons) to appear at Hoag's Corners, in the said town, on the 25th day of September, 1880, to make a jury to re-assess the damage occasioned by the laying out of a highway in the said town, by the highway commis- sioners thereof, on the 10th day of September, 1880. Hereof fail not. Witness my hand this 3d day of September, 1880. J. B., Justice of the Peace. Oath of Jury. You, and each of you, do solemnly swear, in the pres- ence of Almighty God, well and truly to determine and re-assess such damages as shall be submitted to yojir consideration. Ko. GS. Verdict of Re-assessment. See ante p. 379. 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 Hadley, in APPENDIX OF FOKMS. 631 the county of Saratoga, by the highway commissioners thereof, on the 18th day of September, 1880, which said highway runs from {describe the highway as in the order, and state whose lands it passes through), having taken a view of the premises, and heard the parties and such witnesses as have been offered by them and sworn before us, do hereby determine and re-assess the said damages as follows, viz. : We deter- mine and re-assess the damages of H. B. at one hun- dred dollars. {Specify each person^ s damages passed upon,) To be signed by the six Jurors. Saratoga County, ss. : . I, J. B. , the justice of the peace, by whom the within (or above) named jury were summoned, drawn and sworn, do certify that the within {or above) is the ver- dict of re-assessment rendered by the jury, pursuant to the said proceedings, this 28th day of September, 1880. J. B., Justice of the Peace. No. 69. Appeal to County Judge. See ante p. 286, 288. To the Hon. John C. Hulbebt, County Judge of Sar- atoga County : I, Burton White, of the town of Northumberland, in said county, conceiving myself aggrieved by the determination of the commissioners of highways of the town of ISTorthumberland, in said county, made on the 632 THE LAW OF HIGHWAYS. first day of August, 1880, in laying out {or altering, discontinuing, refusing to lay out, alter or discon- tinue) a highway in the said town, from {describe the road as in the order of the commissioners), upon the application of John Guy, do hereby appeal from the said determination of the said commissioners, and pray the appointment of referees, according to the form of the statue in such case made and provided, to hear and detennine my said appeal. The ground upon which this appeal is made, is that {here set forth the cause of complaint), and said appeal is brought to reverse entirely the determination of the commissioners {or if part only, then) to revei-se the determination, &c, specifying the part sought to he reversed. Dated, &c. BURTON WHITE. Ko. 70. Notice to Commissioners, of Appeal. See ante p. 289. To A. B., C. D. and E. F., Commissioners of High- ways of the town of Pittstown, in the county of Rensselaer : ^ Take notice, that I have appealed to the county judge of the said county of Rensselaer, from the de- termination made by you on the first day of August, 1880, laying out {altering, or as the case may be), a highway in said town, beginning {insert description), and that said appeal is brought on the ground, &c. {insert ground), and is brought to reverse entirely your said determination in so far — specifying the parts to be reversed. Dated, &(c. Signature. APPENDIX OF FORMS. 633 No. 71. Appointment of Referees. See ante p. 291. Rensselaer County, ss. : Whereas, David A. Lancaster, of the town of Pitts- town, in said county, has appealed from the determin- atian of the commissioners of highways of the said town, made on the 30th day of December, 1879, in {laying out, altering, discontinuing, refusing to lay out, alter, discontinue) a highway in the said town, which highway is particularly described in the said appeal hereto annexed [and, whereas Richard Bailey and John Smith have also appealed from the same determination of the commissioners, which said ap- peals are also hereto annexed), and sixty days having elapsed after such determination has been filed in the oflice of the town clerk of the said town. Now, therefore, I, Jeremiah. Romeyn, county judge of the said county, to whom the said appeal was {or appeals were) addressed according to the form of the statute in such case made and provided, do hereby appoint James Monroe of the town of Schaghticoke, William Otis of the town of Lansingburgh, and Henry Myrtle of the town of Hoosac, three disinterested freeholders 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 referees, to hear and determine all the appeals that have been brought in relation to the said determination of the said commissioners. Given under my hand this 3d day of June, 1880. JEREMIAH ROMEYN. 634 THE LAW OF HIGHWAYS. No. 72. Appointment of Referees by Justice of Sessions WHEN Judge is Disqualified. See ante p. 286. Rensselaer County, ss : Whereas, on the 10th day of Jane, 1880, C. D., of the town of Nassau, in the said counfy of Rensselaer, appealed to the Hon. A. B., county judge of the said county, from the order and determination of E. F., commissioner of highways of the said town, made on the 30th day of December, 1879, laying out {altering, or as the case may be), a highway in the said town, which highway is particularly described in the said appeal hereto annexed, and sixty days having elapsed after such determination has been filed in the office of the town clerk of the said town, and whereas the said county judge is a resident of said town of Nassau {or whatever the disability may be), now, therefore, in accordance with the statute in such case made and provided, I, the undersigned, one of the justices of the sessions of the said county of Rensselaer, do hereby appoint I. J., K. L, and M. N., all residents of the said county of Rensselaer, but not one of them resi- dents of the said town of Nassau, referees to hear and determine the said appeal {or appeals). Given, under my hand this 10th day of July, 1880. No, 73. Notice to the Referees of their Appointment. See ante p. 291. To I. J. of, (fee, K. L. of, &c., and M. N. of, &c. : Take notice, that you have been duly appointed by APPENDIX OF FORMS. 635 me, as referees, to hear and determine an appeal made from the order and determination of F. P., commis- sioners of highways of the town of Nassau, in the county of Rensselaer, laying out {altering, or as the case may he) a highway in the said town, which high- way is particularly described in the said appeal here- with delivered to you. And also that the papers per- taining to the mat.ter {or matters) referred to you as aforesaid. Dated the 10th day of March, 1880. A. B., County Judge, (or O. P., Justice of the Sessions, of Rensselaer County.) No. 74. ■ Oath of Referees. See ante p. 294. County of Rensselaer, ss : We, the undersigned, I. J., K. L. and M. M., ref- erees appointed to determine the appeal of G. H. {or appeals of O. H.. &c. ), from the order of the commis- sioners of highways, for altering {or discontinuing, or as the case may be) a highway in the town of Nas- sau, do severally, solemnly swear that we will faith- fully hear and determine the said appeal {or appeals) referred to us. Signed. Sworn at Nassau, in the county ) of Rensselaer, the 14th day of >• March, 1880, before me, ) John Guy, Justice of the Peace. 636 THE LAW OF HIGHWAYS. No. 75. Notice BY Referees to the. -Gojcuissioners of Highways. See ante p. 292. To E. F., C. D. and J. G., Commissioners of Highways of the town of Pittstown, in the county of Rens- selaer : Take notice, that we have been duly appointed ref- erees to hear and determine an appeal made to A. B., county judge of the county of Rensselaer, by C. L.. of the town of Pitts town, from your determination con- tained in your order, made on the 10th day of July, 1880, and filed and recorded in the office of the town clerk of the said town, on the 13th day of July, 1880, refusing to lay out, &c. {as in the appeal) ; and that we shall attend at the house of M. N., in said town, on the 5th day of October next, at 10 o'clock in the fore- noon of that day, to hear and determine such appeal. Signed, Dated, &c. Referees. No. 76. Notice to Occupants of Land. See ante p. 292. To A. B. : Take notice, that we shall attend at the house of J. R., in the town of Pittstown, in the county of Rensse- laer, on the 6th day of October, 1880, at ten o'clock in the forenoon of that day, to hear and determine the APPENDIX OF POEMS. 637 appeal made by C. D., of said town, to Gr. L., county- judge of the said county, from tlie order and determin- ation of E. B., A. C, and D. L., commissioners of highways of the said town of Pittstown, made on the 3d day of April, 1880, and filed- and recorded in the town clerk's office of the said town, on the 16th. day of April, 1880, refusing to lay out, &c. {as in the appeal.) Signed, Dated, &c. . Referees. No. 77. SxjBPCENA poE Witness to Attend and Testify UPON AN Appeal. See ante p. 295. Town of Ogden, Monroe County, \ ** ' To E. F. AND J. K. : You, and each of you, are hereby commanded, in the name of the people of the State of New York, to appear before the undersigned, referees, appointed by the county court of Monroe county, at the house of L. E., in the town of Ogden, county of Monroe, on the 3d day of July, 1880, at 10 o' clock in the forenoon, to testify respectively in a matter of a certain appeal from the decision of the commissioners of highways of the town of Ogden to the said county court, and then and there to be heard on the part, and in behalf of E. P., appellant (or of the said commissioners, as the case may be.) Given under our hands this 20th day of June, 1880. A. B. ) J. K. y Referees. S. M. 638 THE LAW OF HIGHWAYS. No. 78. Order of Referees Deciding an Appeal. See ante p. 303. Whereas, Holloway Long, of the town of York, in the county of Livingston, on the 1st day of July, 1878, appealed to the Hon. Scott Lord, county judge of said county, from the determination of the commis- sioners of highways of the said town, made on the 15th day of June, 1878, in {laying out, altering, discontin- uing, refusing to lay out, alter, discontinue), a high- way in the said town, which highway is particularly described in the said appeal hereto annexed, {and whereas, RicTiard Bailey and John Smith, also appealed from the same determination of the said commissioners, which said appeals are also hereto annexed), and whereas, after the expiration of sixty days after such determination had been filed in the oflice of the town clerk of the said town, the said county judge, according to the form of the tstatute in such case made and provided, appointed us, James Johnson of the town of Avon, Hiram Den- nison of the town of Lima, and James S. Wads- worth of the town of Geneseo, three disinterested freeholders, who had not been named by the par- ties interested in the appeal, and who are residents of the county, but not of the town wherein the road is located, as referees, to hear and determine all the ap- peals that had been brought in relation to the said determination of the said commissioners, which said appointment is hereto annexed, and we having given notice pursuant to law, to the. said commissioners of .highways {and to John Rogers, an applicant for such road), specifying the 25th day of August, 1878, as the APPENDIX OP F0EM8. 639 time, and the dwelling house of Jacob Howe, in the said town of York, as the place, at which we would convene to hear the appeal, which notice was duly served at least eight days before the said time of con- vening, to wit : on the ICth day of August, 1878, and we having convened at the time and place specified in said notice, and before proceeding to hear said appeal {or appeals,) having been duly sworn by an officer authorized to take affidavits to be read in courts of record, to wit : Robert Jones, Esquire, a justice of the peace of the said county, faithfully to hear and deter- mine the matters referred to us, have heard the proofs and allegations of the parties, and do thereupon order, determine and adjudge that the said determination of the said commissioners of highways, be and the same is hereby reversed {or affirmed), or reversed in so far {stating part reversed), and affirmed as to the residue {and, if the road is to ie laid out hy the referees add), and we do further order and determine that the said highway be laid out in accordance with the application of the said A. B., and the same is hereby described as follows : {insert description.) Witness our hands this 26th day of August, 1878. Referees' Signatures. No. 79. Appidavit for Certioeari. See ante p. 293. Rensselaer County, ss : John Gray, being duly sworn, says that he is a resi- dent of the town of Pittstown, in said county, and 640 THE LAW OF HIGHWAYS. liable to be assessed for highway labor therein ; that on the 3d day of July, 1867, G. L. and D. S., two of the commissioners of highways of the said town of Pittstown, on the application of E. C, made an order laying out a highway in said town, commencing, &c. {insert description), which said order was filed and re- corded in the town clerk's office of said town, on the 5th day of July, 1880, and is in the words and figures following, to wit : {insert copy of order) that the high- way so laid out passes through the improved and cul- tivated lands of this deponent, and of M. N. and O. P. And this deponent further alleges tliat the said road so laid out, as aforesaid, was laid out without the certificate of twelve freeholders ; and that W. D., one of the alleged freeholders who certified to the necessity and propriety of the said road, had, at the time of making such certificate, no legal title to any real estate. And this deponent further alleges, that the said order laying out the road, as aforesaid, was made by the above named two commissioners, without the intervention of G. D., one of the commissioners of highways of said town, and without any notice to him to attend the meetings of the commissioners for the purpose of deliberating on the subjwct of such order ; and that the order laying out said road does not show that the said G. D. participated in the proceeding, or was notified to do so. Sworn, &c. JOHN GAY. APPENDIX OF FOKMS. 641 No. 80. WkIT of ClJRTIOKAlil. See ante p^ 310. The writ vnust be granted and served within four months after the filing of the decision of ref- erees. Laws 1880, chap. 178, § 2125. The People of the State of New York : To A. W"., J. W. and W. H., referees appointed by the county judge of Washington county, on the 3d day of June, 1880, to liear and determine the appeal of John McFarland and William McFarland, from the determination of the commissioners of highways of the town of Salem, in said county, in refusing to lay out a highway in said town. We, being willing, for certain causes, to be certified of a certain decision made by you on a certain appeal of John McFarland and William McFarland, from the determination and decision of the commissioners' of highways of the town of Salem, in the county of Washington, aforesaid, in refusing to lay out a road in said town, under and by virtue of the statutes made and provided, we command you, that the said appeal, together with the testimony given, and offered to be given, on the hearing thereof, with your decision thereon, with all things touching and concerning the same, by whatever names the parties thereto are called, ' before our Justices of our Supreme Court, at the City Hall of the city of Albany, on the first Monday of May next {tirke and place of the next general term), you send, under your hands, together with this writ ; that our said court may further, thereupon, cause to be done therein, what of right ought to be done. 42 642 THE LAW OF HIGHWAYS. Witness, Charles R. Ingalls, one of the Justices of onr Supreme Court ; at the Court-house in the city of Troy, this 10th day of January, 1881. J. THOMAS DAVIS, Clerk. BANKER & RISING, .4«2/«. {Indorsed.) On the application of Banker & Rising, counsel for the applicant, and on the affidavit of John Gay, dated the 3d day of July, 1880, 1 allow the within writ of certiorari to issue ; and let said affidavit be- filed in the office of the clerk of Rensselaer county. C. R. INGALLS, Just. Sup. Court. No. 81. Return to Writ of Certiorari. See ante p. 312. Washington County, ss : By virtue of and in obedience to a writ of the people of the State of New York hereunto annexed, and directed and delivered unto us, A. B., E. D. and E. F., referees, appointed by the county judge of Washing- ton county, on the 3d day of June, 1880, to hear and determine the appeal of John McFarland and William McParland, from the determination of the commission- ers of highways of the town of Salem, in said county, in refusing to lay out a road in said town. We do hereby certify and return that on the 17th day of Sep- tember, 1880, we were appointed, by the county judge of Washington .county, referees, to hear and determine the appeals of William McFarland and John McFar- land, from the order and determination of the commis- APPENDIX OF FORMS. 643 sioners of highways of the town of Salem, in refusing to lay out a highway in said town, which order and determination were made on the 5th day of July, 1880, and filed and recorded in the town clerk' s office of said town of Salem, on that day, and that the order appoint- ing us is in the words following, to wit : {insert copy order appointing.) We do further certify, that the appeal of the said William McFarland and John Mc- Farland, and which was delivered to us by the said county judge, is in the words following : {insert copy of appeal; proceed, gimng a detailed statement of every step taken, with copies of all orders, papers, evidence, &c.) In testimony whereof, we have respectively, to these presents, affixed our seals and subscribed our names this 20th day of October, 1880. Signatures, [l. s.] No. 82. Commissioner' s Order to Remove Encroachments. See ante p. 325. Whereas, a highway was laid out in the town of Wilton, in the county of Saratoga, on the 10th day of July, 1880, by the commissioners of highways of the said town (or hy E. O., C. D.\ and E. F., referees^ &c.\ beginning (^■?^5er^ description as in the order, including a statement of the width of the road as it was originally intended to have been), which road ia encroached upon by the fence of Reuben Conkrite, to the extent of {state how much), on the north side {de- scribe where). 644 THE LAW OF HIGHWAYS. 'Now, therefore, we, the commissioners of highways of the said town,{state the attendance of, or notice to all the commissioners, unless they all sign the order), do hereby order that such fence be removed, so that such highway may be of the breadth originally intended. Dated, &c. Signatures. No. 83. Notice to Remove Encroachment. See ante p. 325. To Mr. Reuben Conkrite : Sir — Please to take notice that an order, of which the annexed is a copy, has been duly made by the commissioners of highways of the town of Wilton, in the county of Saratoga, and that you are hereby required to remove the fence therein specified, as en- croaching upon the highway, within sixty days after service hereof. Dated, &c. Signatures. No. 84. Notice to Remove Fences. See ante p. 324. To Mr. John Doe : Whereas, the undersigned commissioners of high- ways of the town of Lima, in the county of Livings- ton, have laid out a public highway, by an order, dat-ed July 23, 1880, and duly filed with the town clerk APPENDIX OF FORMS. 645 of the said town, which said road passes through en- closed lands, owned {or occupied) by you ; and whereas our determination in the matter of laying out such road has not appealed from — Now, therefore, please to take notice that you are re- quired to remove your fences from within the bounds of said highway, within sixty days after service hereof. Yours, &c., F. W. COLE, Dated, &c. Commissioner of Highways. No. 85. Denial of Encroachment.. See ante p. 330. To the Commissioners of Highways of the town of Pittstown, in the county of Rensselaer : Take notice, that I hereby deny that the fences men- tioned in the order and notice heretofore served on me, and dated June 3d, 1880, encroach upon the highway mentioned in said order and notice. Yours, &c.. Dated, &c. (t. W. Application to Justice Thereon. See ante p. 391. To T. R., Justice of the Peace of the town of Pitts- town, in the county of Rensselaer : An order having, on the 3d day of June, 1880, been made by the commissioners of highways of the , said 646 THE LAW OF HIGHWAYS. town of Pittstown, of which the following is a copy {insert copy), and notice of said order having been duly served on A. B., one of the persons named therein, and through whose land said highway runs, requiring him to remove, within sixty days according to said order, his fences therein mentioned as an encroach- ment upon the said highway, and A. B., having in vpriting denied that said fences encroached on said highway, therefore, I, E. Gr., one of the commissioners of highways of the said town, do hereby apply to you, T. R., one of the justices of the peace of said county of Rensselaer, for a precept, directed to any constable of the said town of Pittstown, to summon twelve free- holders thereof, to meet on the 5th day of September, 1880, at the dwelling-house of M. N"., in said town, to inquire into the premise, according to the statute in such case made and provided. Dated, &c. Signature. Summons to Freeholders in Case op Encroach- ment. See ante p. 331. Oneida County, ss : To any constable in the town of Camden, in the said county : You are hereby commanded to summon twelve free- holders of said town to meet on the 5th day of July, 1880, in the dwelling house of E. J., in said town to inquire into the matter of an alleged encroachment upon the highway in said town leading from {here de- scribe the place and the alleged encroachment, as in the order) and you are to give at least three days' no- APPENDIX OF FOBMS. 647 tice to the commissioner of highways of said town and to C. D., of the time and place at which such freehold- ers are to meet. J. W., Dated, &c. Justice of the Peace. mo. 86. Oath of Juey. See ante p. 331. You and each of you do solemnly swear, that you will well and truly inquire whether any encroachment has been made, and by whom, on the highway now in question. Oath to Witness. You do swear, that the evidence you shall give, in relation to the encroachment on the highway now in question, shall be the truth, the whole truth, and nothing but the truth. Certificate of Jury when Encroachment is Found. See ante p. 333. Oneida County, ss : The undersigned, freeholders of the town of Cam- den, in said county, having met on the day of the date hereof, at the dwelling house of E. J., in said town, pursuant to a summons from J. W., Esq., a justice of 648 THE LAW OF HIGHWAYS. the peace of the said county, to enquire into the mat- ter of an alleged encroachment on the highway, in said town ; specified in an order of the commissioners of highways of said town, dated Jan. 3d, 1880, a copy whereof is hereto annexed, having been duly sworn, and having heard the proofs and allegations which were submitted, do certify* that an encroachment on the said highway has been made, and that the same was made by John Jones, the present occupant {or by Samuel Smith, a former occupant.) Witness our hands this 13th day of July, 1880. Signatures. Certificate when no Enckoachment is Found. {As above to*, continuing), that no encroachment has been made, as was alleged, and we also ascertain and certify the damages which John Jones, the present occupant, has sustained by these proceedings at ten dollars. Witness our hands this 13th day of July, 1880. Signatures. No. 87. Notice of Application to Supervisors. See ante p. 361. Notice is hereby given that the undersigned, E. G. , of the town of Pittstown, in the county of Rensselaer, will apply to the board of supervisors of said county, at their next annual meeting to be held at the court house in the city of Troy, in said county, on the 3d APPENDIX OF FORMS. 649 day of December, 1880, to cause to be levied, col- lected and paid to the treasurer of the said county of Rensselaer, such sum of money as may be necessary to construct and repair bridges in said county, and to prescribe upon what plan and in what manner the moneys so raised shall be expended. Dated, &c. G. G. No. 88. Petition of Officer or other Person on Seizure OF Animals in Highway. See ante p. 450. Asa Shedd of the town of Pittstown, in the county of Rensselaer, makes complaint to Theodore C. Rich- mond, one of the justices of the peace in said town, and alleges that this complainant is overseer of road district, 'N.o. 3, in said town {or street commissioner of the village of A.); that on the 3d day of July, 1880, this complainant found running at large in the high- way leading from the northern turnpike to John Sher- wood' s, in said road district, one deep-red cow, blind in the left eye ; that thereupon this complainant, as such overseer, seized and took into his possession said cow, and keeps the same to be disposed of according to law. That said cow is the property of one William Brown, (or that your petitioner has no knowledge, information or belief, as to the name of the owner of said cow), and the same cannot be ascertained by him with reasonable diligence. Your petitioner therefore prays that a final order may be issued, directing the sale of the said cow so seized, and that the proceeds of 650 THE LAW OF HIGHWAYS. said sale be applied as directed by the statute in such case made and provided. ASA SHEDD. Rensselaer County, ss. : Asa Shedd, the above complainant, being sworn, says, that the facts set forth in the above complaint are true. ASA SHEDD. Sworn to before me this 5th ) day of July, 1880. j Theodore C. Eichmond, Justice of the Peace. No. 89. Petition of Owner or Occupant of Lands on WHICH Animals Seized were Trespassing. See ante p. 450. WUliam Tillinghast of the* town of Pittstown, in the county of Rensselaer, makes petition to Theodore C. Richmond, one of the justices of the peace of said town, and alleges that he is the owner (or occupant) of land in said town. That on the fith day of July, 1880, he found trespassing on the premises so owned (or occu- pied) by him, one bay horse about the age of eight years, with a white star on his forehead. That said horse so trespassed on your petitioner's premises, by entering from the highway. That, by reason of said horse so trespassing on said land, your petitioner has suffered damage to the amount of four dollars, by reason of said.horse breaking down a portion of your APPENDIX OV FORMS. 651 petitioner' s fence, trampling down the grain and other- wise destroying the same. That said horse is the property of one John Telle (or that the name of the owner of said horse is not known to your petitioner, and cannot be ascertained by him with reasonable dili- gence). Wherefore your petitioner prays for a final order, directing the sale of said horse, so seized, and that the proceeds of such sale be applied as directed by the statute in such case made and provided. WILLIAM TILLINGHAST. Rensselaer County, **. ; William Tillinghast, the above petitioner, being duly sworn, says, that the facts set forth in the above com- plaint are true. WILLIAM TILLINGHAST. Sworn to before me this 7th day of July, 1880. Daniel Y. Draw, Justice of the Peace. No 90. Precept. See ante p. 451. State op New York, ) • Town of Pittstown, > ss : • County of Rensselaer. ) To John Telle {or to ar^y person or persons having any interest in the animal hereinafter described. ) Whereas, William Tillinghast of the town, county, 652 THE LAW OF HIGHWAYS. and State aforesaid, lias presented a petition in writing, under oath, to me, setting forth, that on the 6th day of July, 1880, he seized and took into his possession the following animal, viz. : One bay horse about the age of eight years, with a white star in the forehead, by him found at the time of such seizure, trespassing on premises owned {or occupied) by him in said town, contrary to the statute in such case made and pro- vided. You are hereby required to appear before me, the undersigned, one of the justices of the peace resid- ing in the town wherein such seizure was made, on the 22d day of July, 1880, at ten o'clock in the forenoon, at my oflBlce, 25 Main street, in the village of Pitts- town, in said town and county aforesaid, and show cause why the prayer of the said petition should not be granted. DANIEL V. DRAW. Dated July 7th, 1880. Justice. No. 91. Proof of Service of Precept by Constable. See ante p. 453. Rensselaer County, ss : I hereby certify, that on the 12th day of July, 1880, I served the within precept on the John Telle, the per- son named therein, by delivering to and leaving with him personally a true copy thereof ; or that I could not with reasonable diligence, find John Telle within this county, and served the within precept, by leaving a copy of the same, certified, by me, at the last place of residence of the said John Telle, in this county, with a person of suitable age and discretion ; or that APPENDIX or FORMS. 653 I could not with reasonable diligence find said John Telle within this county, nor could I find any person at his last place of residence of suitable age or discre- tion on whom to serve the within precept, and I served the same by posting it on the outer door of said resi- dence, and also by depositing another copy thereof in the post office at Pittstown, that being the nearest post office, inclosed in a sealed post-paid wrapper, directed to the defendant. WILLIAM DAWES, Constable. No. 92. Warrant for Sale of Animals. See ante p. 454. Rensselaer County, ss : To any Constable in the town of Pitstown, in said county : You are hereby commanded to sell at public auc- tion, for the best price you can obtain therefor, one red cow, blind in the left eye, heretofore seized and taken into possession by Asa Shedd, overseer of high- ways of road district No. 3, of said town, and now in his possession, and make return thereof to me, at my office in said town, on the 5th day of August, 1880. Given under my hand this 20th day of July, 1880. THEODORE C. RICHMOND, Justice of the Peace. 654 THE LAW OF HIGHWAYS. No. 93. Constables Return of Sale. See a7de p. 454. Rensselaer County, ss. : To Theodore C. Richmond, one of the Justices of the Peace, of the town of Pittstown, in said county : I, William Gray, one of the constables of said town, and to whom was delivered a certain warrant, issued by you, and directed to any constable of the said town of Pittstown, commanding him to sell, &c. {as in the warrant) do hereby certify and return, that by virtue of said warrant I did, on the 28th day of July, 1880, having given at least five days public notice of the time and place of such sale, sell at public auction in said town, the red cow mentioned and described in said warrant, to John Doe, for the sum of fifty-nine dollars, he being the highest bidder, and that being the highest price bid therefor. WILLIAM GRAY, Dated, &c. Constable. No. 94. Application for a Private Road. See ante p. 479. To the Commissioners of Highways of the town of Mendon, in the County of Monroe : The subscriber, a resident of said town, and liable to APPENDIX OF FOEMS. 655 be assessed, for highway labor, hereby makes applica- tion to you to lay out a private road for his use, begin- ning, &c. {insert description, specifying its width Q/rid location, courses and distances), that said road runs through the lands of Henry Barton and John Jones. Dated, &c. A. B. No. 95. Notice to Owner or Occupant. See ante p. 480. To Lemon Grippen : Please take notice that on the 20th day of July, 1880, at 10 o'clock in the forenoon, at the house of James Forbes, in Wilton, a jury will be selected for the pur- pose of determining upon the necessity of the road asked for in the application of which a copy is annexed, and to assess the damages by reason of opening the same. Signatures, Dated, &c. Commissioners. Ko. 97. Certificate of Jury, upon Application for a Piai- VATE Road. See ante p. 482. We, the undersigned, being disinterested freeholders 656 THE LAW OF HIGHWAYS. of the town of Green, in the county of Erie, having met on the 23d day of May, in the year 1880, at the residence of Anson Boice, in said town, having been duly sworn, well and truly to examine and certify with regard to the necessity and propriety of the road de- scribed in the annexed application of A. B., and having viewed the lands through which it is proposed to be made, do certify, that in our opinion it is necessary and proper to lay out a private road for the use of the said A. B., pursuant to his said application, and we do assess the damages as follows : to John Hall, $100. In witness whereof, we have hereto subscribed our names, this 23d day of May, 1880. P. W., S. T., &c. No. 97. Order for Laying Out a Private Road. See ante p. 483. At a meeting of the commissioners of highways of the town of Mendon, in the county of Monroe, at the residence of Anson Boice, in the said town, on the 23d day of November, 1880, all the said commissioners having met and deliberated on the subject of this order {or if but two of the commiissoners Tnet, say, all the said commissioners having been duly notified to attend the said meeting, for the purpose of delibera- ting on the subject of this order), upon the application of A. B., for the laying out of the private road here- after described, and on the certificate of twelve reputa- ble freeholders of said town, convened and duly sworn, APPENDIX OF FOKMS. 657 after due notice to the owner (or occupant) of the lands through which said road is to pass, as required by the statute, certifying that such road was necessary : It is therefore ordered and determined by the said commis- sioners, that a private road be laid out for the use of the said A. B., pursuant to his application, the courses . and distances whereof, according to a survey thereof which the said commissioners have caused to be made, are as follows : {insert the survey.) And it is further ordered, that the line above described, shall be the ■center of said road, and that said road shall be of the width of two rods. In witness whereof, we have hereunto subscribed our names this 23d day of November, 1880. A. B., ] C. D., V Commissioners. E. F., ) No. 9S. Additional Assessment by Ovekseer. See ante p. 186. Whereas I, Asa Shedd, overseer of road district No. % in the town of Pittstown, and county of Kensselaer, do not deem the labor assessed on the inhabitants of said road district by the commissioners of said town of Pittstown, for the year 1880, sufficient to keep the rOads in said district in repair. Therefore, I do hereby further assess the following names persons — actual residents in said district — the amount of labor set opposite their respective names being in the same proportion as near as may be, and 43 658 THE LAW OF HIGHWAYS. not to exceed one- third of the number of days assessed in the same year by the said commissioners on the inhabitants of said district : Karnes. Days. Names. Days. James Holt 6 John Jones 4 Witness my hand this 5th day of June, 1880. ASA SHEDD, Overseer. INDEX. ABANDONED road, description of/ to be filed 263 ABATEMENT of action 1^ of obstruction 34a_ of tax for shade trees 192 for removing fence 193 for watering trough ' 193, 5i5 ACCEPTANCE of dedication by the public 63 ACCOUNTING of commissioners to town auditors 109 annual, by overseers 200 ACTION by commissioners against railroads 412 for money loaned 141 on bonds of indemnity 141 by or against commissioners 136 against successors 139 does not abate, when , 140 for damages through obstructions 345 title of 137 as to strays 447-465 by or against plankroad or turnpike 567^ ALLEY, a thoroughfare without acceptance 66 ALTERATION of road by referees 300 of highways 79, 253-255 AMBULANCE, right of way of 438 ANNUAL return of commissioner 97 of overseer 200 APPEAL from commissioners . , 285 appointment of referees 285 who may appeal 2^6 when it will not lie .'. 307 to what .iudge 287 notice of, to commissioners 289 time in which to appeal 289 660 INDEX. APPEAL, form of. 288 by non-residents 184 effect of appeal 305 tiom decision as to strays 457 APPLICATION to lay out highway 104, 216 for alteration of highway 253 for discontinuing highway 257 APPOINTMENT of overseer 155 of successor in action 140 of referees 290 ASSESSMENT of highway labor 180, 185 who liable to. 172 how made 177 penalty to be set off against 197 of damages on laying out road 26G-270 through enclosed land 275 costs on 275, 280, 282 re-assessment 276 BRirXJE, may be highway 11 dedication of 66 over private raceway 12 over canals 388 how built 360, 366 maintaining drawbridge 352 liability of commissioners as to 353 repair of. 91, 1 18 .who bound to repair 11 commissioners to repair S:! overseers have no care of 161 how money raised for repairs 110, 114, 357 between adjoining towns, how repaired 863 toll bridge 373 notice on 356 where damaged or destroyed 361 BRIDGE COMPANIES, how incorporated 377 application of, to erect bridge 381 BONDS issued for loan to repair roads and bridges lis BOUNDARIES by highways 39 how construed 41 by rivers •. 42 CANALS, fee in 23 bridges over 388 CATTLE in highways 51, 447 INDEX. 661 CATTLE, proceedings upon seizure 448-465 guards at crossings 413 CERTIFICATE of justice ^ 579 CERTIORARI 283, 308 CEMETERY, road not to be laid through 227 CITIES, liability of, for not repairing streets 8? COMMISSIONERS OF HIGHWAYS, election and powers of. . TO, 76 number and term of office of. 72 number, how changed 73 oath of 71, 73 form of oath 578 penalty for refusing to serve 82 to give bond 74 when two may act 105, 135, 255 are Inspectors of plankroads . . , 101 duty as to fire in woods 135 are fence viewers 123 to divide town into road districts 92 to appoint overseers 120 to receive money from overseers 169 to require overseers to give warning 100 when to meet 73 to lay out highway 102, 214-23 to give notice to occupants 234 to summon jury , 108, 258 to record roads 80 to lay out new road districts 94 term of office 96 to assign inhabitants 99 how to make assessment 172, 177 in case of omission by assessor 182 liabilities as to highway labor 202 appeal from 285, 291 liability as to bridges 9, 78, 83, 353 to repair highways 78, 83, 118 liability for not repairing 85 to repair bridges between towns 364 to repair toll bridges 373 to erect mile stones and guide posts 122 to open road 302 to carry out decision of referees 304 to regulate and alter highways , , . . . 79 but not without jury 80 662 INDEX. COMMISSIONERS OF HIGHWAYS, may allow damages in al- teration 270 to discontinue road 107 to consolidate road districts 99 may consent to use of highway by railroad or plankroad company 143 power of, to loan money 141 may borrow money 9/ action by, or against 136 may employ counsel 140 may prosecute for penalties 141 to prosecute overseer 122 acts of, may be Impeached 107 injunction against 150 mandamus against 145 Indictment of, for not repairing 345 annual statement of. 97 to account to town auditors 109 resignation of 75 vacancy in office, how filled 72, 275 to deliver books to suceessor 151 fees of 153 COMMISSIONERS to lay out railroads streets in 391 to determine necessity of. 392 Special 249,507, 561 COMPENSATION, to owner of fee 39G of overseers 170 COMPLAINT for not working 195 proceedings thereon 196 COMMUTING for labor 190 by corporation 191 CONSENT of owner to the laying out of road 103, 220 CONSEQUENTIAL damages 409 CONSOLIDATION of road districts 99 CORPORATIONS, how assessed 179 penalties, how collected against 199 to repair 425 COUNSEL, commissioners may employ 140 COUNTIES, laying out roads between ; 241 COSTS of assessments by whom paid 280 of certiorari 312 on laying out road, how paid 232 CUL DB SAC, meaning of 3 INDEX. 663 CUL DE SAC, may be a highway 3 DAM, how to be constructed in navigable rivers 21 DAMAGES to floating timber 120 in consequence of laying out railroad 409 assessment of, in laying out highway 266-275 referees to consider 300 how collected 283 how adjusted in exemptions 237 DEDICATION of highways 53 who may make 64 how proved 55, 62 of streets 59 of bridges 66 effect of 67 how accepted 62 may be revoked 68 how presumption of, rebutted ., ; 60 DECISION of referees and its effect 302 DEPASTURING highways 31 DISCONTINUING highways 102, 256 application 257 proceedings in 257, 261 effect of 263 plankroads and turnpikes 573 DOGS, injury to sheep by 131 DRAWBRIDGES 352 DRIFT WAY, definition of. 2 DRIVERS, law of road as to 444 ELECTION of commissioners 70 ELEVATED ROADS, how assessed 181 ENCROACHMENTS on highway 313 when allowable 314 when not allowable • 316, 321 by fences 324 where deemed 330 fallen trees, when 335 EQUESTRIANS, law of road as to 437 EXCAVATION in street, who responsible for 29 EXEMPTION from highway labor 185 EXEMPT TOWNS 236 EXTRA VIAM, how used 2 JfEE in highway 25 pre:iumed to be in adjacent owner 26 664 INDEX. FEE, presumption may be rebutted 2T absolute, subject to easement 21 in turnpike , 35- when it passes 40 FEE, owner of, may sell 27 may have action of trespass 27 may have action of ejectment 28 when maj' sink water pipes 28 compensation to 39ft remedy of 407 FEES of commissioner 153 of inspectors of plankroads 101 ofjury 232 in exempt towns 237 of referees 30ft of plankroad commissioners 562 FENCE, sufficiency of 129. reflisal to build 127 may be removed, when 3, 245 removal of ;. 127 abatement of tax for removing 193 encroachment by 324 when encroachment denied 330, 340 destroyed by flood 128 FENCE VIEWERS, commissioners of highways are 123 duties of 123 how chosen 12ft may examine witnesses 128 FERRIES, when highways Ift FILING papers 251, 25ft in discontinuing highway 261 FINES for not removing snow 186 FIRE in woods, duty of commissioners 135 FIREWORKS not permitted in street 322 FIXTURES, meaning of term 105 FORMS, oath of commissioner 578 certificate of justice 579. bond of commissioners 679 affidavit of justification 580 acknowledgment 581 indorsement of supervisor's approval 581 notice of commissioners' resignation 581 order appointing commissioner to fill vacancy 582 INDEX. 665 FORMS, order ascertaining and describing road 682 order dividing town into road districts 583 commissioners' annual account 584 statement and estimate for supervisor 585 notice of application for additional appropriation 586 order appointing overseer 587 appointment of overseer to fill vacancy 587 complaint to commissioners against overseer 588 security to commissioners for prosecuting overseer 589 consent for railroad to cross highway 589 agreement to use highway for plank road 590 complaint to compel delivery of books to successor 590 order thereupon granted 591 affidavit of delivery 592 warrant to commit the person withholding 593 search warrant for such books or papers withheld 594 notice of appointment of overseer 595 notice of acceptance by overseer 595 assessment by overseer for scraper or plow 59ff overseer's list of persons liable to highway labor 597 overseer's annual account 597 commissioners' list of non-resident lands 599 commissioners' assessment of highway labor 599 road warrant 601 overseers' assessment of persons omitted 604 appeals to commissioners from assessment of overseers. . . . 604 appeal by non-resident 605 commissioners' consent to work in another district 606 notice to agent of non-resident 606 notice in case of non-residents 607 overseer's complaint for refusal to work, &c 607 summons 608 constable's return on summons 609 judgment thereon 609 warrant to levy fine .• 610 overseer's return to supervisor 610 affidavit to such list 611 application to lay out road 612 notice of application to alter or lay out 612 order for laying out or altering highway 613 notice of inspector to toll-gatherer 614 order to throw open toll-gate 615 certificate of town clerk 615 666 INDEX. PORMS, summons in laying out 617 fteeholder's certificate to lay out road 617 notice to occupant 618 notice to R. R. Co. of highway across track 619 notice to remove fences 619 application to discontinue old road 620 consent of owner to lay out highway in orchard 620 notice of discontinuance of old road 621 freeholder's certificate to discontinue 621 notice of meeting of commissioners 622 order discontinuing road 622 agreement of owner and commissioner as to damages 623 Release of damages by owner 624 application to county court to appoint commissioner to as- sess damages 624 notice of meeting of commissioners to assess damages 625 order appointing commissioners to assess 626 assessment by commissioners 627 notice to adjoining town clerk of drawing of jury 628 town clerks certificate of drawing of jury 628 notice when commissioners or parties are aggrieved or dis- satisfied 629 summons for jury 630 oath of jury 630 verdict of re-assessment 630 appeal to county judge 631 notice to commissioners, of appeal 632 appointment of referee 633 appointment of referee by justice of sessions 634 notice to referees of appoiatroeut G34 oath of referees 635 notice by referees to commissioners 636 notice to occupants of land 636 subpoena for witness, on appeal 637 order of referees on appeal 638 affidavit for certiorari 639 writ of certiorari 641 return to writ of certiorari 642 commissioners' order to remove encroachments ,. . 643 notice to remove encroachment 644 notice to remove fences 644 denial of encroachment '. 645 application to justice thereon 645 INDEX. 667 FORMS, summons to freeholders on encroachment 646 oath of jury 647 oath to witness 647 certificate of jury on encroachment 647 certificate of no encroachment 648 notice of application to supervisors 648 petition of ofiicer on seizing animals in highway 649 petition of owner or occupant 650 precept 651 proof of service of precept 652 warrant for sale of animals 653 constable return of sale 654 application for private road 654 notice to owner or occupant 655 certificate of jury as to private road 655 order for laying out private road 656 additional assessment by overseer 657 FREEHOLDERS, oath of, when necessary , 227 certificate of , . . • 228 number necessary 228 who are 102 Garden, road to be laid through 103, 223 GATE, penalty for injuring or passing 875 GATES, when not allowed in highway 337 GRAVEYARD, road not to be laid out through 227 GUIDE-POSTS, commissioners to erect.. 122 overseers to erect 162 HIGHWAYS, fee in 25-31 definition and kinds of 1 by dedication 53 when bridges may be , . . . 11 canals are 23 when ferries are 16 navigable rivers are ' 17 when railroads are 10 turnpike and plankroads are 8 street in city is 6 when a cul de sac is a highway 2 boundaries by 39 depastt^ring 8) use of by public 33 carrying on business in 38 how laid out 214-52 668 INDEX. HIGHWAYS, between different towns 241 width of 243 along division lines 243 to be opened and worked within six years 246- what roads are 248- turnpike roads, when 249 where not to be laid out 226 how laid out across railroad track 238 alteration of. 253 application for 253 how discontinued 256 how abandoned 263 assessment of damages on 266 obstructions and encroachments on 313 what allowable 314 what not allowable 315, 321 railroads in 390 horse railroads in 10, 400 use of, by railroads • 143 use of, by plankroad 144 laying rails in 35 cattle in 31, 447 trees may be planted on 10, 336 swinging gates not allowed on 337 weeds to be destroyed on 341 commissioners to repair 83 HIGHWAY LABOR 202 assessment of 172, 177 who exempt from 178 notice to perform 188 change of system of 210 return to original system 212 IMPEACHMENT of acts of commissioners 107 INDICTMENT of overseers 162 for obstructions , 375 for not repairing toll-bridge 375 INJUNCTION against commissioner 150 INJURY to sheep by dogs 131 INSPECTORS of plank roads, commissioners are 101 fees of 101, 153 special inspectors 533 JUDGMENT, how collected 142 JURY to consider application to lay out road 108 INDEX. 669 JURY, drawing of 230 nine must attend 231 fees of 232 must examine route 233 necessary for alteration 254 in re-assessment of damages 278 when to be summoned 278 number to be drawn 279 on discontinuing road 258 number and proceedings 259 not to be paid , 260 KIN, definition of term 201 LABOR ON HIGHWAY '. 202 how assessed 172, 177, 179 notice to work 188 commuting for 190 non-resident labor unpaid 198 in villages 180 on plank roads 181 how anticipated 185 additional assessment 186 XANDS lying open, notice of. 125 LAWOFTHEROAD 433 as to railroad cars 437 as to travelers on horseback 437 as to ambulance , 438 when passing in same direction 438 as to travelers on foot 441 where highway is Impassable 444 prohibits running horses 444 concerning drunken drivers 444 XAYING OUT HIGHWAYS 214 who may apply for " 104 commissioners' duty as to 102, 214 application 216 may be made without application 104 notice to be posted 217 survey 217 with consent of owner. 220 through orchard. , 220 through building 228 through garden 103, 223 through fixtures 104, 223 670 INDEX. LAYING OUT HIGHWAYS, not to be laid through graveyard, 226, 227 oath of freeholders necessary 227 nine must certify to necessity of 228, 232 notice of application 229 proceedings thereon 229 drawing and summoning jury 230 jury to examine route 232 fees of jury 231 notice to occupant 234 description of road 235 certain towns exempt 236 . jurors' fees in exempt towns 237 across railroad track 23^ between different towns 241 upon town line 241 into districts 241 by referees 300 LAYING 0UT PRIVATE ROADS 479 LIABILITY of commissioners 85, 209 of cities and villages 87 of towns for not repairing 86 LISTS of assessment to be filed 182 copy to be made by town clerk 182 names omitted may be added 183 MA]? of new road district to be filed 96 MANDAMUS against commissioners 146, 150 MEETING of commissioners 75, 172 to raise money for repairs 115 MILE BOARDS, overseer to erect 162 commissioners to erect 122 MILITIA, free passage to, through gate or bridge 375 MONEY, how provided for repairs 110, 114, 357, 363 lack of, by commissioners 84 how borrowed by commissioners 97 overseer to pay over 169, 201 NATIONAL GUARD, free passage through toll-gate and bridge. . 375 NAVIGABLE RIVERS, what are 18, 45 NON-RESIDENTS, taxes of. 117 assessment of 173 appeals by ; 184 labor unpaid, how collected 198 NOTICE of appointment of overseer 156 of acceptance by overseer, not necessary 156 INDEX. 671 NOTICE of application to lay out 217 to occupants ;.. 234, 293 of discontinuance 257 to work on highways '. 18* need not be in writing 18!^ to corporations 190 to commissioners of appeal 289 on bridge 356 on toll-bridge 37S OATH of commissioner 71, 578 commissioner may administer 73 OBSTRUCTIONS IN HIGHWAY 313 what allowable 314 what not allowable 816-21 penalties for 339 when parades considered 322 of navigable rivers 322 abatement of 342 remedy by indictment 344 action for damages on account of 345 ORCHARD, road not to be laid through 103, 221 ORDER appointing commissioners to be filed 275, 290 appointing referee to be filed 290 appointing overseer to be filed 156 of alteration to be posted 254 of discontinuance to be posted 261 OVERSEERS, how appointed 120, 154 are subordinate to commissioners 158 must be an elector 154 vacancy in office of, how filled 121, 155 order appointing, to be filed 156 notice of appointment 156 penalty for refusing to serve 147 rights and liabilities of 159, 205 to destroy weeds 157 to remove stones 158 to remove snow 186 to remove obstructions 159 have no care over bridges 161 not bound to repair without funds 161 indictment against 162 to erect guide-posts and mile boards 162 to furnish scraper and plough 123, 162 672 INDEX. OVERSEERS, duties in regard to strays 163 must file petition 164 must give notice to work 100, 188 must give notice to agent 189 to deliver list of labor un worked 198 must prepare list of inhabitants 165 and file wltli the clerk 165 may require team 193 to credit work on sidewalk 424 acceptance of excuse by, does not exempt 197 to account annually 169 compensation of 169 to pay over moneys 169, 201 must not cut down ornamental trees 204 how prosecuted for neglect of duty 122 OWNER OE FEE, rights of. 25, 33 may maintain trespass 27, 35 may sink drain, &c 28 must restore the way 29 may sell soil 30 entitled to trees in highway 31 may sue railroad 69 compensation to 396 remedy 'of 407 consent of, to lay out highway 210 PARADES, law regulating 322 PENALTY, for refusing to serve as commissioner 72 for refusing to serve as overseer 157, 166, 168 encroachments m on overseer for relusing to account 170 for not delivering list 198 how collected 200 for injuring sidewalk 422 for injuring plankroad 655 for falling trees 335 as to strays 44g for not working j94 how imposed 19g to be set off igj against corporations, how collected 199 PLANKROADS AND TURNPIKES 9, 437 may lay rails 402 use of highway by 144^ 623 INDEX. 673 PLANKROADS AND TURNPIKES, assessment for labor 181 commatation on 182 construction and repair of. 529 inspectors of, to be appointed 583 how incorporated 487 preliminary subscription 489 stockholders of, may be directors 491 articles of association 491 incorporation, how proved 492, 495 extension of existence 493 statement, where abandoned 495 annual statement 495 management of 497 leave to construct, how obtained 506 commissioners to lay out 507 lands, how procured 609 erection of gates 639 tolls on, and how collected 542 who exempt from tolls 546 penalty for injuring 555 of taxes on 557 branch roads and extensions 658 powers of purchasers on sale 564 actions by or against 567 how discontinued 573 PLOUGH, overseer to fUmish 162 PRIVATE ROADS under the statute 479 proceedings to lay out 479 credit on assessment for working 181 PUBLIC SQUARES, when railroad may lay track on 69 RAFTS, streams kept clear for 383 RAILROAD, fee in 35 when highway 10 to be assessed as real estate 180 use of highway by 34, 143 how highway laid out across 238 corporation to restore road 410 to maintain cattle guards 413 but not at farm crossing 416 to give signals at crossing 418 to take highway across track 239 in highways and streets 10, 390 crossing horse car tracks 394 44 674 INDEX. RAILROAD, over or under road *03 In New York city *08 action by commissioners against *12 right of public to travel on track *1'^ RAILS, plankroad may lay *02 RE-ASSESSMENT of damages... 276 of deficiency 202 REFEREES, order appointing, to be filed 275 appointment of. 285, 290 notice of appointment 291 service of notice 292 on appeal 296 notice of, to occupants 293 to meet and be sworn 204 to compel attendance of witnesses 295 to consider damages 300 may reverse in part 300 when to lay out or alter 300 efitect of decision of 302 cannot amend decision 303 decision remains for four years , 306 fees of 306 when no appeal lies 307 REPAIRS OF BRIDGES AND HIGHWAYS 88, 91, 360 commissioners to direct 79 money for, how provided 110, 114, 357 where damaged or destroyed 362 between towns 363 of toll bridges 372 expense of, how collected 374 RE-PAYMENT of damages assessed 274 RESIGNATION of commissioners 76 KIVERS, are highways when 17 are navigable when 18, 45 boundaries by 42 obstruction of 322 ROAD, law of 433 KO ADS, to be described and entered of record 80 width of 243 along division lines 245 where damaged or destroyed 118 duty of overseer in repairing 159 not bound to repair without funds 161 INDEX. 675 ROADS, how money raised for repairs 110 how laid through unimproved land 98 in incorporated riiiages 116 railroad company to restore, when 410 {See Laying out Highway.) how discontinued 107 ROAD DISTRICTS, how formed 93 consolidation of 99 commissioner to divide town into 92 SCRAPER, overseer to furnish 123, 162 SHADE TREES, abatement of tax for planting 193 SHEEP, injured by dogs 131 SIDEWALKS, who may make .420 planting shade trees along 421 penalty for injuring 422 highway tax expended for, when ' 423 work on, to be credited 424 duty of corporation to repair 425 SNOW, removal of from sidewalks 429 assessment to remove 186 where fence removed to prevent drifting 193 SPECIAL COMMISSIONERS 249, 391, 661 STREETS, fee in 26 are highways 6 use of. 6, 8 dedication of 59 includes sidewalks and gutters 8 person making excavation in, responsible 28 railroads in 10, 390 commissioners to lay out 391 to determine necessity of. 392 horse railroad in 400 easement not exclusive 403 right of public to travel on track 417 STRAYS , 129 duties of overseers in regard to 163 (See Cattlk in Highways.) SUBSTITUTES, hours to work 194 SUCCESSOR, appointment of 140 action against 139 SURVEY in laying out highway 217 in alteration. 254 676 IKDEX. SURVEY, in discontinuance 260 SUPERVISORS, to audit damages assessed 282 to levy unpaid labor 199 when to repair bridges 11* may authorize towns to borrow money 114 TAX, abatement of 192 for shade trees 192 for removing fence to prevent drift 193 for watering trough 193, 545 levy of, for new road district 95 on non-residents 1 17 on plankroad and turnpike 557 TENANT to deduct assessment from rent 185 TOLLS, when not to be levied 81, 97 rates of, how changed 544 on turnpikes 542 exemption from 384, 546, 553 commutation of. 550 TOLL BRIDGES 371 repair of 372 company must rebuild 372 indictment for not repairing 375 free passage for National Guard 375 TOLL-GATES, when to be thrown open 81, 101 erection of, by turnpike company 539 injuring or passing 375; 550 fl:ee passage to National Guard 375 (iSee Tolls.) TOWNS, liablUty of 86 laying out roads between 241 repair of bridges by 350, 353 how built between 366 may borrow money for repairs 114 meeting of officers to raise money 115 TREES IN HIGHWAY 27, 31, 421 when may be cut down 204 may be planted 336 to be removed when fallen 835 penalty for falling 335 to be removed ftom streets 336 abatement of tax for planting 193 TRESPASS through line fence 129 INDEX. 677 TUNNELS, construction of 404 consent of owners to be obtained 405 use of, by otlier roads 406 railroad liable for damages : . . . . 406 TURNPIKES 487 (5ee Plankroabs.) use of higliway by 145 when higliway 8, 249 fee in 35 railroad over or under 403 UNIMPROVED LANDS, roads through 98 VACANCY in office of commissioner, how filled 121 in office of overseer, how filled 155 VILLAGES, road in 116 liability for not repairing 87 assessment In 180 highway tax in, to be expended on sidewalks 423 VINEYARDS, road not to be laid out through 227 Whole number of pa^es, 695>