Supreme Court, December, 1910. [Vol. 70. The policy of the law in this State has been to appropriate as highways abandoned turnpike and plank roads. People ex rel. Keene v. Supervisors, 151 N. Y. 190-194. Neither does it appear to what extent the highway was traveled; but it must have been considerable, as it constituted the shortest and most direct route between the village (now city) of Watertown and the village of Black River and was e part of the principal thoroughfare easterly to the village of Carthage. It has recently been adopted by the proper authorities for the building of a State road extending from Watertown to the village last mentioned and is designated. as route 27 in section 120, article 6, chapter 330, Laws of 1908. The "good road" has now been completed with "macadam" pavement from Watertown to Carthage. * The statute of 1873, under which it was assumed to discontinue the highway and which included the bridge and the approach for some distance on each side of the river, provides: "The commissioners of highways of the towns of Rutland and LeRay * * are hereby authorized to discontinue any bridge or highway now existing or claimed to exist in said towns, below the village of Black River within one mile therefrom, and, in lieu thereof, to lay out, in the manner provided by law, a highway about one mile in length along or near the bank of Black river in the town. of LeRay, connecting the bridge at the village of Black River, to the line of the old plank road leading to the city of Watertown, and the expense of such new highway shall be borne equally by said towns of Rutland and LeRay." Besides discontinuing the road in question, a new highway was laid out in the town of LeRay, as provided in the statute. For the land taken for the new highway, damages seem to have been assessed and paid to the owners. While the new road remains open, it is practically unused so little that grass is growing in the roadbed. It does not appear from the evidence presented nor by recital in the order of discontinuance that any step in the proceedings was taken as prescribed by the General Highway Law as it then existed. There was no written application by Misc.] Supreme Court, December, 1910. a person liable to be assessed for highway labor (1 R. S. 513, 54); no summoning of freeholders to certify in regard to the propriety of discontinuance (1 R. S. 502, § 2) nor evidence or finding that the old road had become unnecessary (id., § 2); nor does notice appear to have been given to the persons living on said highway. Laws of 1873, chap. 69. The portion of said road so attempted to be discontinued in the town of LeRay was fenced on one side and bounded by a forest on the other. A temporary fence was built across it by Mr. Henry Huntington near to his house, and the portion so fenced in was used by him for pasturage. The bridge that had crossed the river from time out of memory fell or was carried away by a flood in the spring of 1873. A new bridge was built on the same site by popular subscription in 1891 or 1892, but was.carried away before completion. Soon thereafter (1893) the present bridge was built on the same site by "the Town of Rutland and popular subscription," and was at once used by the public in connection with the abandoned road. The last-mentioned bridge has now become weak and has been condemned. Nevertheless, since its erection it has been and still is much used by teams and vehicles, including auto mobiles. In 1896 the town board of the town of LeRay by resolution caused a post with a sign-board thereon to be placed at the intersection of the road in question on the LeRay side of the river and the new road previously laid out, with a hand pointing in the direction of the bridge, with the inscription, "This is not a highway." From the time of said discontinuance order, road warrants for performance of highway labor were issued by the highway commissioners to the overseer of the road district which before had included such discontinued portion of the road in LeRay, omitting any reference thereto; and the highway commissioners have assumed to ignore its existence as a part of the highway system of the town. Nevertheless, in the year 1908, Frank Walts, who was then highway commissioner of LeRay, caused a large boulder that had rolled down into and obstructed the road about fifty Supreme Court, December, 1910. [Vol. 70. feet from the bridge, to be blasted in picces and removed; and Perley Huntington, living on the farm adjoining said discontinued road for nineteen years, has been employed by the commissioners of LeRay to cut the brush alongside the road and to stone and repair the roadbed. He and others residing in the road district to which the discontinued part. formerly belonged have been permitted to work out their highway taxes on such discontinued portion. The first question then is, Did the proceedings mentioned work a discontinuance of the highway? The statute of 1873 attempted no express repeal of the General Highway Law as then existing; its purpose apparently was to confer a power on the highway commissioners of the two towns in a proceeding not provided for by any statute; but with respect to the general procedure, application by a person liable to be assessed for highway labor, the certificate of freeholders that the highway had become unnecessary, compensation to persons damaged by the discontinuance and notice to such persons as live upon the highway, the law apparently remained as before and for aught that I can see should have been observed. While the Legislature had power to discontinue the highway and also to delegate the power to others (Egerer v. N. Y. C. & H. R. R. R. Co., 130 N. Y. 108), it did not by the act in question expressly or by implication provide that the commissioners should or might do it in any event, and whether it ought or ought not to be done; neither does it provide for. those who might be inconvenienced or damaged by the change. Statutes upon the same subject, being in pari materia, are to be construed together and considered in one act (I Kent Comm. 463; Perkins v. Perkins, 63 Barb. 631; People v. Smith, 69 N. Y. 175; People v. Commissioners, 77 Hun, 372), and all ought to be complied with. Under the General Highway Law it must have appeared that the highway sought to be discontinued has become unnecessary. People v. Griswold, 67 N. Y. 59; Matter of Fox Street, 54 App. Div. 483; People v. Pike, 18 How. 70. The certificate of twelve frechellors as to the uselessness Misc.] Supreme Court, December, 1910. of the road was essential to give jurisdiction. People v. Hynds, 30 N. Y. 472; Town of Gallatin v. Loucks, 21 Barb. 578; Fitch v. Commissioners of Kirkland, 22 Wend. 132. Who owned the land over which the road ran; who were the abutting owners, and who if any were damaged by the discontinuance of the road are not shown; no notice to those residing on the road was given, as required by chapter 69, Laws of 1873, yet those damaged, if there were such, could not be deprived of their interest in the highway except by due process of law. N. Y. Const., art. 1, § 6; Abendroth v. Manhattan R. Co., 122 N. Y. 1; Egerer v. N. Y. C. & H. R. R. R. Co., 130 id. 108; Matter of City of Rochester, 24 App. Div. 283-289; Morgan v. King, 35 N. Y. 454;. Buckholz v. N. Y., L. E. & W. R. R. Co., 148 id. 640. Moreover, the power was to "the commissioners of highways of the towns of Rutland and LeRay," not a part of them. The LeRay commissioners all signed the order; only two of the Rutland commissioners participated, so far as the records show. I am informed there were in fact three commissioners in office at the time. The common-law rule is that authority vested in several must be executed by all. Applying this doctrine to the highway statutes it has been held that all the commissioners must sign, or be notified to attend for the purpose of deliberating upon and considering the matter in hand; and where there has been notice to all, which must appear in the order, the proceeding is not void if one omits to sign, as under such circumstances a majority may act. Babcock v. Lamb, 1 Cow. 238; Fitch v. Commissioners of Kirkland, 22 Wend. 132-135; People v. Hynds, 30 N. Y. 470; People v. . Williams, 36 id. 441; Matter of Baker, 173 id. 249-254. Temporary interruptions by reason of the weakness or destruction of the bridge, though covering a considerable space of time, would not operate as an abandonment of it as a public way (Matter of Glenn & Florida, 3 N. Y. Supp. 461); the law being that once a highway it does not cease until discontinued by proper authority. Driggs v. Phillips, 103 N. Y. 77; Walker v. Caywood, 31 id. 51. My opinion then is that the highway, including the bridge, Supreme Court, December, 1910. [Vol. 70. was not discontinued by the proceeding attempted under the special act of 1873. But, assuming this conclusion is not warranted and that there was a valid discontinuance in 1873, the second inquiry comes, Is it still a discontinued highway? Its use by the public has been continuous and without interruption since. 1893. A highway by dedication, as against the owner of land over which it passes, may be created by him within a less period than twenty years. His acts and intent so to do must appear by satisfactory evidence. 3 Kent Comm., 457; Cohoes v. D. & H. C. Co., 134 N. Y. 402. No owner has appeared to challenge the fact of dedication to the public use. The abutters have fenced and worked the road as a highway; it is in daily use by them. In addition to the fact of dedication there must be on the part of the town an acceptance. Here no town official has obstructed the road or otherwise interfered with it to the actual embarrassment of travel. There has been a public use for many years, facilitated by the labor of the taxpayers of the town by the implied, if not express, authority of the highway authorities; and it was to such an extent as in my judgment to amount to an acceptance, notwithstanding the officials, as such, by declarations and to a limited extent by acts, undertook to deny acceptance after August, 1873. It must be remembered that the supervisor, commissioner of highways and the overseers of road districts do not, as a whole or singly, alone constitute the "town" or the "public." The users of the road, the inhabitants at large, must be considered in determining whether there has been an acceptance. The town officers doubtless have sought to rid themselves of the cost of erecting the bridge, but the people of the town ought not to have the benefits of the way for a long period of time without bearing a share of the burdens. It is not permissible to say one thing, and all the time, by implication, at least, do another. Nor should an important public improvement like the building of the State road be |
