108 N.Y.S. 1122 | New York County Court, Ontario County | 1908
This proceeding was commenced under section 83 of the highway law (Laws 1890, p. 1193, c. 568) for the discontinuance of a portion of an old highway in the town of Manchester, which crosses the Canandaigua outlet at the hamlet of Manchester Center, and includes but little more than the bridge over said outlet, which has heretofore been maintained as a part of said highway at the expense of the town. Upon the application of the petitioner three- commissioners were appointed, as provided by section 84 of the Highway Law, and the said commissioners proceeded to give the notice required by the statute, and a large amount of testimony was taken bearing upon the question of whether that portion of this highway is, within the. meaning of the statute, useless and unnecessary, as far as the public is concerned. At the several hearings before .the commissioners the contestant, Mr. Merritt, appeared in person and by his attorney, and several witnesses were sworn in his behalf, particularly upon the subject of damages, which he claims he will suffer-if said highway:is discontinued. It appears
As jurisdictional questions affecting the subject-matter can be raised at any time, I conclude that the petition in this matter is entirely sufficient to confer upon the court jurisdiction to appoint the commissioners, and that their proceedings thereafter were regular. Irregularities, however, cannot now be considered, as the irregularities complained of in the affidavit are not stated in the notice of motion as required by rule 37 of the general rules of practice. It is not sufficient to state supposed irregularities in the moving affidavit only. German American Bank v. Dorthy, 39 App. Div. 166, 57 N. Y. Supp. 172. The contestant also claims that the undisputed evidence shows -that this highway is occasionally used by the public, and that, therefore, it cannot be sáid to be absolutely useless, and cites with confidence the Matter of Coe, 19 Misc. Rep. 549, 44 N. Y. Supp. 910. I think the decision in this case can no longer be regarded as an authority, for it is contrary, in my judgment, to the reasonable interpretation of the statute. Section 86 of the highway law provides, in case of the discontinuance of a highway as useless, that the commissioners “shall assess all damages, which may be required to be assessed by reason thereof.” Manifestly, if the word “useless” is to be taken here in its absolute sense rather than in its relative sense, there could be no damages, and the statute sriving the commissioners power to assess damages would be needless verbiage. I take it to mean that when the commissioners determined that such highway, or portion thereof, is substantially or practically useless, some other highway reaches the same points and better accommodates the public, and that the public can have no occasion to pass over this highway, except possibly
The only remaining question to be determined upon this motion is whether the commissioners were justified in refusing to allow to Mr. Merritt any damages by reason of the proposed discontinuance of this highway. This is a contested question of fact; and is not only to be determined by verbal testimony of witnesses produced upon both sides, but by the observation and experience of the commissioners who viewed the premises, and must be deemed to have taken into consideration all of the circumstances affecting the rights of the other parties to the proceeding. It is not to be assumed that they made any unjust or unfair discrimination against him, his property, or his claim. It may well have excited in the minds of the commissioners some feeling of incredulity as to the good faith of Mr. Merritt and his witnesses when they placed his damages at sums varying from $1,200 up to $3,400. Mr. Merritt testifies that his property is worth $4,000 as it is, and, if the highway were discontinued, it would not be worth to exceed $600. It is inconceivable how such extravagant statements can be justified, except upon the theory that, the larger the claim made, the larger will be the allowance, even though the full amount is not expected. As above stated, the commissioners must be deemed to be the best judges of the facts and circumstances surrounding this case, and the position of Mr. Merritt with reference thereto, and except in a clear case of abuse of power, or. apparent unjust and unfair discrimination against the party, I think their decision ought not to be disturbed. It is impossible for me, even with all the evidence before me, to say, according to my own judgment, whether the commissioners were actually justified in their conclusion as to Mr. Merritt, or not, and, in the absence of any suggestion of misconduct on their part and believing them to be fair-minded men of sound judgment, I must adopt their conclusion that Mr. Merritt is not, in the sense contemplated by the statute, damaged by the discontinuance of this highway.
. The motion to vacate the decision of the commissioners is therefore denied, and their decision is confirmed.