Christy v. Newton , 1871 N.Y. App. Div. LEXIS 117 ( 1871 )

By the Court, Johnson, J.

This action was brought to recover the penalties given by statute for neglecting to remove alleged encroachments on a highway, in obedience to the order of the plaintiffs as commissioners of highways. (1 R. S. 522, § 104.)

The referee has found, upon the evidence, that the highway in question was never a laid out highway according to the provisions of the statute. If this is so, this action cannot be maintained. Highway commissioners are not authorized to make any order for the removal of encroachments, except in the case of a highway laid out according to the statute. (1 R. S. 521, § 103.)

Unless the highway has been laid out and recorded in conformity with the statute, there can be no proceedings by the commissioners of highways for an encroachment. (Doughty v. Brill, 36 Barb. 488.) It is very clear from the evidence, that the highway in question was never laid out in pursuance of the provisions of the statute.

The order of the 28th of June, 1830, is signed by two of the commissioners, only, and it does not appear from it that the other commissioner was notified to attend, or had any knowledge of the proceedings, bfor is there anything to show that any preliminary steps, such as the statute requires, had been taken. That order is therefore a nullity. (The People v. Williams, 36 N. Y. 441.)

The other order, of September 5th, 1840, signed by two of the commissioners, which recites that all the commissioners had been notified to attend for the purpose of deliberating on the subject of the order, is upon a subject wholly unknown to the statute. The subject of that meet-ing, for deliberation, was, as appears on' the face of the order, upon an application “ to establish the old Allegany road as a public highway.” ifo such proceeding as this is authorized by the statute, and the public could acquire no rights under it. But even if this had been a valid order to lay out a highway, the highway was not opened or worked, as described in the survey, or in any manner, on that portion of it where the premises in question are situated, until after the lapse of nearly fourteen years. It was opened and worked for a short portion of the distance only. It had therefore ceased to be a highway for any purpose, at the place in question, even if it had been lawfully laid out originally. (1 R. S. 520, § 99.) Another survey seems to have been made under the directions of two of the commissioners of highways, of this Allegany road, in 1854, but nothing is claimed on the part of the plaintiffs by reason of that survey.

[Fourth Department, General Term, at Rochester, September 4,1871.

The road in question never having been regularly laid out as a highway, no right of action ever accrued to the plaintiffs by reason of the refusal of the defendant to comply with their order. The judgment is right, and must be affirmed.

Mullin, P. J., and Johnson, and Talcott, Justices.]