In re Wagstaff

Gaynor, J.:

The objection that the description of the proposed highway in the certificate of their decision by the commissioners appointed by the county court under section 84 of the Highway Law to determine upon the necessity for the proposed highway and assess the damages on the opening thereof is so indefinite as not to locate the starting point, and that they filed no map of such highway with their certificate, is unfounded. They are not required to file a map thereof; that requirement is put upon the commissioners of highways in making and filing their order laying out the highway, which comes at the end (§ 81). Nor are they required to incorporate a description thereof in their certificate. The application to the highway commissioners (§ 82) to lay out a highway must necessarily describe the proposed highway, and the petition to the county court for the appointment of commissioners to determine upon the necessity, etc., must also necessarily do the same in order that it may appear what proposed highway is before the court. In the present case the description is in the application to the highway commissioners, the petition, the notice of presentation thereof to the court, the order appointing the commissioners, and their certificate of decision.

The starting point is fixed with precision, and not “ about ”, as is claimed. The words of the description are as follows: “ Commencing at a point in the westerly side of a highway known as Higbie’s Lane, the middle Une of said proposed highway being about three hundred feet Southerly (measured along the Westerly side of Higbie’s Lane) from the land of the Long Lsland Railroad Company on which the track of the Montauk Division of said rait/road is laid, and being eighty-five feet Southerly from the Southeast corner of land of Mrs. Brimley; and from said point of beginning running ”, etc. The words I have italicised are obviously surplusage and of no effect, and if they be disregarded it will be seen that the starting point is fixed with precision. The contention that the proposed highway is not authorized by law because it does not terminate in another highway, or is a cul de sac, is without support in law. It runs to the centre of a creek which divides the town from another town. Highways often terminate in open fields. It would be quite impossible to open highways gradually if every one had to terminate in an existing highway. The point that the commissioners acted on an erroneous principle in assessing the damages is unfounded. Ho such thing appears in the record. The order appealed from is not re viewable in respect of the necessity of the proposed highway or of the amount of damages (§ 89).

The order should be affirmed.

Jenks, Hooker, Rich and Miller, JJ., concurred.

Final order of the County Court of Suffolk county affirmed, with costs.