Fowler v. Mott

19 Barb. 204, 1855 N.Y. App. Div. LEXIS 7

• Court: New York Supreme Court
• Decided: January 2, 1855
• Status: Published

Opinion

By the Court,

S. B. Strong, J.

The certificate of the comiuissioners of highways of the town of North Hempstead, dated on the 7th day of November, 1818, purported that they laid out a highway at Bedell’s Landing, commencing at a highway near a school house, and running westerly to a willow tree, being three rods in width on the north side of a designated line “ according to public usage for twenty years previous to the year 1797,” and extending westerly from the willow tree to the main creek, including all the land north of the south marginal line to a brook, “ it being for a public highway and landing.” The plot taken by the commissioners became wider than three rods after passing to the westward of the willow tree, and is nine .rods wide at the head of the landing. The defendant dug a ditch on that part of the plot lying west of the willow tree, and more than three rods north of the south side of the highway; and this suit was instituted to recover treble damages for such alleged obstruction, under the 103d and 104th sections of the act to regulate highways in the counties of Suffolk, Queens and Kings, passed on the 22d of February, 1830.

The defendant’s counsel contended, on the argument, that the action should have been brought by the overseer of the district, under the 83d section of the act. That section imposes a single penalty of five dollars for a wanton damage to the road, or obstructing or injuring it in various ways, to be recovered by the overseer of the district. The 103d section of the act provides that whoever shall willfully injure any highway, shall forfeit treble damages, but does not state by whom they shall be recovered. The 104th section provides that all penalties or forfeitures given in the act, and not otherwise specially provided for, shall be recovered by the commissioners of highways. This action is for treble damages, by way of forfeiture, for a willful injury ; and there is no special provision in the act for their recovery by any other officer. It could be instituted, and can be sustained, if at all, only by the commissioners. The injuries mentioned in the 83d and the 103d sections must often be identical, but the remedies are different; and if they are not cumulative, so as to support an action under each section for the same wrong, there can be no difficulty in sustaining the suit first instituted, according to the provisions of the statute. The action is for an injury to the highway, and unless the ground where the ditch was made was a part of the highway, it cannot be maintained. I do not agree with the counsel for the defendant that the obstruction must necessarily be upon a recorded highway. The 82d section of the act declares that all roads not recorded, which have been used as public highways for twenty years or more preceding the 21st day of March, 1797, and which shall have been used and worked as such for the last six years, shall be deemed public highways. The act makes it the duty of the commissioners to record a description of such highways, but they do not forfeit their character of public roads by any omission of the commissioners to comply with the statutory requisition. The proof to sustain the allegation that the road in question was an ancient highway within-the meaning of the statute was by no means strong, but we are not authorized to reverse the judgment of the court below upon a question of fact, so long as there was any evidence to sustain it. Neither was it satisfactorily proved that the road in question had been worked within the last six years. But, clearly, it had been in constant use during that time, • and that was all that was necessary, to continue its previously acquired public character. The statute could not have been designed to obliterate highways in constant use when repairs have not been made because they were unnecessary. In cases where a sound construction of a statute requires the substitution of a disjunctive for a copulative conjunction, the change is uniformly and very properly made. Yerbiage yields to reason.

■ This case was argued, however, principally upon the record, and it will no doubt be more satisfactory to the parties, and possibly terminate the controversy between them, to consider and decide the questions which the record-presents.

The certificate of the commissioners purports that they laid out the road at the time of its date. It says that they have and do lay out the highway. It is also stated that it is upon a line “according to public usage for twenty years previous to 1797.” That may be true, and yet the road may have been laid out at the date of the certificate, within the meaning of the act, as there is nothing in it to prevent the laying out of a road upon the site of an old one. The- statement that it was upon an old track might have had some reference to the amount of compensation to the owner of the- soil. Probably the owner would not have been concluded by it; but if he would, and it was wrong, he might have appealed. It does not appear affirmatively, on the record, that the owner of the land had assented that the road should be laid out through it, or that he had received any compensation for his property thus taken for the use of the public. It is nowhere rendered iiecessary that those statements should be made upon the record. Nor is it necessary that the owner’s consent, if given, should be in writing. It may be verbal, and may of course be proved by oral testimony. The evidence is strong to show that the proprietor of the land (if it belonged to any private owner) did give the requisite consent. If not, the right to object was personal to him, and if he did not think proper to make any objection, the right did not pass to his subsequent grantee. The statute authorizes the owner (among others) to appeal from the determination of the commissioners, within a limited time. If he suffers that time to elapse without doing any thing, it is too late for him to appeal, although possibly he may resort to other measures to obtain his compensation. It is right, on many accounts, that a dissatisfied owner of land taken for public purposes should raise his objection, if ■he intends to make any, within a reasonable time after the proceeding has become public and thus been made known to him.

The principal objection to the determination of the commissioners, and that upon which the counsel for the defendant mainly relied on the argument, is that they designated the'land laid out as and for a public highway and landing. It is very clear that they were not authorized to lay out a public landing, nor do they designate that mentioned in their certificate as a public landing previously laid out. What is said of ancient public usage, is connected directly with, and has reference in terms to, that part of the road east of the willow tree. In records affecting private rights, the language should receive a strict construction ; at any rate, it should not be stretched so as to include doubtful and remote inferences.

The statute fixes no maximum limit to the width- of a highway. That is left to the discretion of the commissioners. Should the discretion be abused, their proceeding, when they have the requisite jurisdiction, can be corrected by appeal to the county judge, and, as I conceive, only on such appeal. The appropriate width of a highway must of course depend much upon its location, and the business to which it will be principally appropriated. A greater width is desirable when it passes through a populous village, or by a church or court house, than when it runs through woodland. So, too, when it terminates at a public landing. I mean for the passage of carriages. Some of our judges seem to think that there can be no public right of deposit, beyond the immediate necessity which justifies a temporary and brief obstruction of the highway. Possibly they may be right, although our early legislators evidently thought very differently. They have not, however, yet decided that our highways cannot be widened when the public convenience requires it, although it may be at a public landing. In the case of The Commissioners of North Hempstead v. The Judges of Queens County, (17 Wend. 12,) Chief Justice Nelson, in giving the opinion of the court, says, “ the road itself, when laid out to those places, (public landings,) as it may be, under the statute, becomes the public landing or entering place at its termination. The width of it at such places may be regulated to suit the public convenience, according to the discretion of the commissioners of highways, as they are unrestricted in this respect.” I do not understand the judgment in Pearsall v. Post, (20 Wend. 111, and 22 Id. 425.) as overruling the doctrine laid down by Judge Nelson in the case which I have quoted from the 17th "Wendell. On the contrary, Judge Cowen, in one part of his elaborate opinion in the case of Pearsall v. Post, (20 Wend. 131,) says, that “as remarked by Chief Justice Nelson in the case cited, the only way in which they (the commissioners of highways) could act favorably to a landing, would be indirectly, by exerting their statute powers for establishing, and preventing encroachments on, a highway leading to and connecting with it.” But it is difficult to see what benefit would result from the procedure, if the learned judge was correct in subsequently saying that the right of the public does not extend to landing goods or passengers from the navigable waters upon an adjoining public highway. That point was not necessarily involved in the case which he was considering; nor was it decided, either in this court or in the court for the correction of errors; nor, with the greatest respect for the memory of that learned judge, do I believe the position taken by him to be ' sound. All our navigable waters are unquestionably public highways, free for the passage of all, to their entire extent. Our public highways are equally free to all, to the water’s edge, if they extend so far, as it is admitted by all they may. The question is (if indeed it can be a question) whether it is not a public common right to pass from one highway to another, when they adjoin each other. If the question is of highways upon the land, there can be no doubt; and what difference in principle can there be if one is upon the land and the other upon the water? If there is a line between the two, which is the property of the riparian proprietor divested of the public right, it is too narrow to be perceptible. In the case of Gould v. The Hudson River Rail Road Company, (2 Selden, 522,) the court of appeals decided that the right to pass from the navigable waters to the adjoining land is public and does not belong exclusively to the riparian owner, so that he can obtain a compensation for it when affected or destroyed by a public improvement. Judge Watson, in giving the opinion of the court, says, that “ among the rights enumerated by the plaintiff’s counsel are the exclusive right to embark from his own land with all kinds of craft, or to use the natural shore down to high water mark, as a landing place, and to draw nets to his shore. These exclusive-rights do not belong to the plaintiff because his lands adjoin navigable waters, but because no other man can enjoy them, for the reason that if he enters upon the appellant’s land, with- ' out his permission, he becomes a trespasser.” That is, the riparian owner has no other rights than such as belong to other land proprietors, to enjoy his property free from the invasions of those who have no right to intrude upon it. But if a highway extends to the edge of the water, what wrong is effected by exercising the public privilege of passing over it ? There is not, according to the case which I have cited from Selden, any exclusive right of landing, per se, in the riparian owner, and there is a right of passing over his land, to its entire extent, in the public. I am free to admit that highways upon the land are not designed to be, nor can they be appropriately used as, places of deposit, except for temporary and necessary purposes ; nor can they be appropriately incumbered by vessels or boats* but it seems to me that they are free for the passage of all, whether from the land or the sea. The law makes no distinction, nor should it. . The privilege may be restricted when it would interfere with the franchise of a ferry or a wharf. But in such cases the right of way, and the franchise, both emanate from the public, and one may well qualify the other.

[Kings General Term, January 2, 1855.

S'. B. Strong, Rockwell and Dean, ■ Justices.]

It seems to me, therefore, that the record in this case, in designating the plot over which the highway was laid out as a public landing, merely specified a purpose to which (with others) it might be lawfully directed. It does not in terms appropriate it as a place of deposit. If it had done that, it might have gone too far. The terms must be applied to the legitimate province of a highway, and no further.

If, however, the privilege of a public landing, in any sense of the term, cannot be legitimately conferred under the statute, the act of the commissioners can be sustained so far as they laid out the land as a public highway. The addition of a public landing would be simply void, and would not be fatal to the entire proceeding; on the maxim that utile per inutile non vitiatur.

Some of the evidence adduced in the court below was inadmissible, but as, in the view which I have taken, such evidence had no reference to the questions which control this case, the judgment should not be reversed on that account.

The judgment should be affirmed.