Schemerhorn v. Mt. McGregor Railroad

New York Supreme Court

Schemerhorn v. Mt. McGregor Railroad

23 N.Y.S. 417, 69 Hun 512, 76 N.Y. Sup. Ct. 512, 52 N.Y. St. Rep. 892

DecidedMay 9, 1893

StatusPublished

This text of 23 N.Y.S. 417 (Schemerhorn v. Mt. McGregor Railroad) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Schemerhorn v. Mt. McGregor Railroad, 23 N.Y.S. 417, 69 Hun 512, 76 N.Y. Sup. Ct. 512, 52 N.Y. St. Rep. 892 (N.Y. Super. Ct. 1893).

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Opinion

HEBBICK, J.

There is nothing in the pleadings or in the evidence to show whether the railroad company did or did not pro[419]*419cure the permission of the supreme court to use or cross the highway in question, and in the absence of any admission or evidence of the fact that such permission was not granted the court will not infer that the railroad company proceeded in violation of the law, but rather that the law has been complied with. The old highway, not having been used or worked for more than six years, has ceased to be a highway, (Horey v. Village of Haverstraw, 124 N. Y. 273, 26 N. E. Rep. 532;) and the court cannot, in these proceedings, reopen it as a highway. The new road laid out in place of the old has been used and worked for so long, and its location acquiesced in for so many years by the town and highway authorities, that I do not see that the court should be called upon at this late day to make any change in its location or construction. The opinion of the trial court seems to me entirely satisfactory, and its disposition of the case correct.

Judgment should be affirmed, with costs. All concur.

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HEBBICK, J.

There is nothing in the pleadings or in the evidence to show whether the railroad company did or did not pro[419]*419cure the permission of the supreme court to use or cross the highway in question, and in the absence of any admission or evidence of the fact that such permission was not granted the court will not infer that the railroad company proceeded in violation of the law, but rather that the law has been complied with. The old highway, not having been used or worked for more than six years, has ceased to be a highway, (Horey v. Village of Haverstraw, 124 N. Y. 273, 26 N. E. Rep. 532;) and the court cannot, in these proceedings, reopen it as a highway. The new road laid out in place of the old has been used and worked for so long, and its location acquiesced in for so many years by the town and highway authorities, that I do not see that the court should be called upon at this late day to make any change in its location or construction. The opinion of the trial court seems to me entirely satisfactory, and its disposition of the case correct.

Judgment should be affirmed, with costs. All concur.

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Bluebook (online)

23 N.Y.S. 417, 69 Hun 512, 76 N.Y. Sup. Ct. 512, 52 N.Y. St. Rep. 892, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schemerhorn-v-mt-mcgregor-railroad-nysupct-1893.

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