19 Misc. 549 | New York County Courts | 1897
This proceeding has been- brought by the applicants for the discontinuance of portions of two old highways in the town of Huntington. The commission has been duly appointed in the matter, and after taking the testimony of the various parties, has decided in favor of the application. The applicants now ask that the decision of the commissioners be confirmed under section 89 of the Highway Law, and the opponents of the applicants ask that the decision of said commissioners be vacated and that the court order another hearing in the matter before other commissioners. It is claimed that the decision should be vacated for the following reasons:
First: That the commissioners exceeded their authority, and showed prejudice in obliging the opponents to pay $25' in order to be heard, and also in declining, upon numerous applications of opponents, to have a hearing in Cold Spring Harbor.
Second: That upon a review of the undisputed evidence, the roads sought to be discontinued are not useless, and in any event, ■ the weight of evidence is overwhelmingly in favor of the old roads. .
It is also claimed that the opponents have an interest in this proceeding and a right to be heard.
•Other reasons are given why the decision of the commissioners should be vacated, but we do not think it necessary to discuss them here.
We will take up the first question whether the opponents have a right to be heard on this appeal. It is the opinion of this court that they have. People ex rel. Ridgeway v. Cortelyou, 36 Barb. 164, referred to with approval in 63 N. Y. 391-396; People ex rel. Banner v. Temple, 27 Hun, 128; Cook Highway Laws of. N. Y. (7th ed.), 302. The latter authority reads: “ The right to appeal from an order made by commissioners of
This court is also of the opinion that the commissioners exceeded their authority,' but did not intend to show prejudice in obliging the opponents to. pay $25 in order to be heard. We do not think that the commissioners intended to act in bad faith; at the same time, the opponents were entitled to be heard without having to pay for the privilege.
The court is of the opinion that the commission had the power to decline the application of the opponents to have a hearing at Cold Spring Harbor. Both Cold Spring Harbor and Huntington, where the hearings were held, are within the town of Huntington, where the two highways, proposed to be discontinued, are located. It is usual in such cases to have the hearings as near to where the highways proposed to be laid out or discontinued, are located, as possible, but there is nothing in the statutes, nor in the decisions of the courts which compete the commissioners to have the hearings at any particular place in the town where the highways áre located.
We now come to the vital question at issue, viz.: Are the two highways proposed to be discontinued, practically useless? In this proceeding, the evidence shows that the applicants proposed to give to the town another highway, situate further to the south . than the other two proposed to be discontinued, providing the applicants succeed with their present application, nevertheless the court is of the opinion that the weight of testimony should show that both of the highways proposed to be discontinued are
An examination of the testimony shows that nearly all the witnesses for the applicants simply gave an opinion that the proposed new road would -be better than one of the old roads. They did not undertake to show that the old roads were useless, and in fact, there is no evidence to that effect. It was not the duty of the commissioners to determine between several highways, which were used more or used- less; the only thing they were to decide in this proceeding, was whether or not these old highways were useless. Only two of the witnesses for the applicants, namely, Mr. Coe, a party in interest, and Mr. Darling, an engineer in his employ, give any reasons of facts upon which their opinions are based. The court is of the opinion that in all cases for the discontinuance of old highways, the weight of evidence must show that the highway proposed to be discontinued, is useless. '
In this proceeding, the weight of evidence fails to show that these two highways are practically useless and the decision of the commissioners does not say so. The decision of the commissioners being that they are not necessary. The court is of the opinion that the word “ useless ” should be used in such a case instead of the words “ not necessary,”
Therefore, the decision of the commissioners is ordered vacated and another hearing in this proceeding, is ordered before other commissioners, who will be named in the order.
Ho.costs are allowed.
Decision of commissioners vacated, and new hearing ordered before other commissioners, without costs.