People ex rel. Sammis v. Board of Supervisors , 65 N.Y. Sup. Ct. 371 ( 1890 )

Pratt, J.

It seems plain that, prior to 1873, the proposed highway could not have been laid out over the relator’s property, without his consent. That act only authorized such a laying out upon the certificate of the commissioners of highways. Laws 1873, c. 773; Thomp. Highw. (3d Ed.) p. 220; 2 Rev. St. (Banks’ 7th Ed.) pp. 1238, 1239. In this case, no such certificate was obtained, but was refused by the commissioners, and there was therefore no power vested in the board of supervisors to appoint commissioners, and the commissioners so appointed had no power to lay out the road. This road ‘falls under the act of 1873, and under the previous act of the law of 1838, as amended by chapter 164 of Laws of 1848. The law of 1873 was made expressly to apply to such an application as this, and it contains an express prohibition against laying out such road, except upon the condition before referred to, viz., certificates of commissioners of highways. Whatever may have been the powers of the board of supervisors prior to 1873, it is plain-that, since that act, either the owner’s consent or the certificate of the highway commissioners is essential to the laying out of such a road. It cannot be claimed that the act of 1838 was intended to provide a method by which a road could be laid out through buildings, without the owner’s consent; but it was the object of the act of 1873 to effect that purpose, but only upon the conditions therein expressed. It may be further said that, irrespective of the act of 1873, we do not think a case was made for action upon the part of the board of supervisors, for the reason that it did not appear that the road was important, and that the commissioners of highways could not or would not act within the meaning of the act of 1838. If the foregoing views are correct, it follows that the action of the board of supervisors was without authority, and must be reversed.