92 N.Y.S. 841 | N.Y. App. Div. | 1905
The proposed highway to which this proceeding relates is less than 3 rods in width; being 31 feet 11 inches wide on the south end, and 43 feet 6 inches wide on the north end. Its length is about 170 feet, and it will constitute an extension or continuation of a public highway already in use, the widest part of which is 50 feet in width. This application is made under section 90 of the highway law (chapter 568, p. 1194, of the Laws of 1890, as amended by chapter 508, p. 396, of the Laws of 1895). That section is entitled, “Limitations upon Laying Out Highways.” It begins with a series of conditional prohibitions. Thus it provides that no highway shall be
It will be observed that a proceeding under section 90 of the highway law differs from an ordinary proceeding under sections 82 to 89, inclusive, for the alteration, discontinuance, or laying out of a highway where the land desired is not dedicated to the town for highway purposes, and not released by the owners. - In such a proceeding a decision by the County Court, under section 89, is final; and the order of the County Court is not brought before the Appellate Division as a matter of course, but may be brought here for review upon appeal only “upon questions affecting jurisdiction, and rulings and exceptions made and taken upon the hearing before the commissioners.” Section 90, on the other hand, down to the last two sentences, which were added in 1895, and which will presently be discussed more particularly, relates only to highways of a special character; that is to say, highways, the opening of which is expressly prohibited, unless there shall first have been obtained not only the approval of the County Court, but the approval of the Appellate Division. As that section stood before 1895, it prohibited the highway commissioners of a town from laying out any highway less than three rods in width without the approval of both these tribunals. At that time the power of the County Court of Orange county and the power of this court to approve the laying out of such a highway as that to which the present proceeding relates was not open to question. That power is now questioned, however, under the last two sentences of the section, which were added by chapter 508, p. 296, of the Laws of 1895, and are as follows:
“In case the highway to be laid out shall. constitute an extension or continuation of a public highway already in use, and shall not, as to such hew portion, exceed half a mile in length, the commissioners may lay out such extension or continuation, of a width of less than three rods, provided, however, that it be not less than the widest part of the highway of which it is an extension or continuation. In such case the commissioners shall specify in their certificate the precise width of the new portion of such highway, and shall certify that such width is as great at least as the widest part of the highway of which it is a continuation or extension.”
The figures which I have given at the beginning of this opinion show that the proposed highway falls precisely within the terms of these provisions. It is to be an extension or continuation of a public highway already in use; the new portion does not exceed half a mile in length; the extension or continuation is to be less than three rods wide; and the new portion is to be less than the widest part of the
If these views are correct, the opposition to the motion is not well founded, and the application should be granted. All concur.