Snyder v. . Trumpbour

This is an action to restrain the above defendants from proceeding to open and work a highway laid out by the defendants, Trumpbour and Foland, commissioners of highways of the town of Saugerties. The suit was sustained and a perpetual injunction awarded, and which judgment was affirmed on appeal to the General Term, and from which the defendants have appealed to this court. The court below were in error in holding the whole order of the commissioners void, because a portion of the distance the commissioners laid the road only two rods wide. This was expressly decided in the trespass suit brought by the plaintiff against the defendant Plass, for the act of trespass complained of in this suit. (Snyder v. Plass, 28 N.Y. 465.) This court adjudged in that case that the order of the commissioners in this case was valid, so far as the road was laid three rods wide. I do not see that it is important, in this case, to inquire whether the order of the commissioners, so far as it relates to that portion known as the old road, was valid or not, as the judge at Special Term has found the defendants had only entered upon that portion of the road north of the part that runs over the old road, and then only had commenced to dig and excavate. That no part of the digging, entering upon, or other injuries complained of by the plaintiff, were upon that section of the road laid out two rods wide, or that portion, the survey of which bordered upon or extended on to the plaintiff's orchard or door-yard, but that such digging was on that section which was surveyed three rods wide, and did not extend into or adjoin the orchard. The court, however, holding that one portion of the order, which laid out that portion upon the old road only two rods wide, was void, and that that vitiated the whole order, and rendered the whole void. This was erroneous, as this court have decided in the trespass suit against Plass, involving this very matter above referred to.

The judgment of the Supreme Court should be reversed, and the complaint dismissed. It is not a case for a modification of the judgment upon the findings of the court below, where it is found,"that no part of the digging, entering upon, or otherinjuries complained of by the plaintiff, were upon that section of the road laid out two rods wide," there is no ground left for enjoining the defendants from opening and working that portion of the road laid two rods wide, as they have not interfered with or threatened to interfere with that, so far as the evidence in the case shows.

Judgment reversed.