Several questions are raised by the counsel for the appellant, each of which he regards as involved in this case, and respectively of such merits as entitle his clients to
a reversal of the judgment appealed from, each of which I will consider in its order. The first is that no jurisdiction was conferred upon the commissioner of highways to act in the premises. The application, instead of being made, in the language of the statute, by persons "liable to be assessed for highway labor" in the town, was by the "taxable inhabitants" thereof. Without regard to the question whether the words "taxable inhabitants," substituted for the words "persons liable to be assessed for highway labor," vitiated the application, a sufficient answer to the question raised is that an application to the commissioner by persons liable to be assessed for highway labor in the town to discontinue the road was not necessary to the right of the commissioner to discontinue it. (The People v.The Supervisors of Richmond, 20 N.Y., 252, 255.) The next is that the authority conferred by statute to discontinue a road does not authorize the discontinuance of a part of it. If this view of the statute is sound, there is no possible way to get rid of any short space of a long road laid out in the early settlement of the country adapted to the public necessities existing at the time, however useless the space may have become by the changed condition and contiguous improvements, however important and useful the other portion of the road may continue to be, all but the inconsiderable space could not be discontinued because it is of conceded public use and necessity; and if the construction insisted upon be sound, the useless space, which may have become a public grievance, cannot be gotten rid of. Every part of a road clearly useless is a road for all the purposes of exercising authority for its discontinuance; and the right to have one end of the road bounded by private property was within the power as well of the commissioner as of the referees. (ThePeople v. Kingman, 24 N.Y., 559, 565, et seq.) It was objected that the reversal, within four years, by former referees, of an order discontinuing this same road, discontinued in the order appealed from, was, until the expiration of the four years from the reversal, a bar to a new proceeding for its discontinuance. To this objection
the answer is that the decision of the former referees was not for "laying out, altering or discontinuing" a highway (Laws, 1847, chap. 455, § 9); but, rather, an order refusing to discontinue a highway. If, therefore, the evidence before the referees was sufficient to fairly raise the question whether that portion of the road embraced in the order of discontinuance had become unnecessary for public use, the decision of the referees, affirming that of the commissioner, is conclusive (2 R.S., 5th ed., 404, § 127), and cannot be reviewed upon certiorari. Upon the hearing before the referees the parties seem to have proceeded upon the erroneous theory that the burden lay upon the appellants to prove that the road, embraced in the order appealed from, continued to be useful to the public and necessary for its accommodation, and not upon the respondent to prove that it had become useless and unnecessary, and ought, therefore, to be discontinued; and, hence, the appellants took upon themselves the initiative and produced witnesses, by whom they proved the road to have been laid out and in use near forty years, and that the part embraced in the order had continued to be used by the public, though to a less extent than it had been before a mill upon it was burned, and before the plank-road south of it was constructed; that several parcels of the old Bristol farm, then owned by several different owners, each parcel of which was bounded by the road; one having been built upon would be inaccessible by any road except the one ordered to be discontinued. There was no other north and south road in that vicinity, except a plank-road, the north end of which was thirty-six rods west of it, and from the road running northerly from the north end of the Bristol farm; and the south end eighty rods west of the southern termination of the Bristol road; so that any one desiring to travel from the point at which that part of the road ordered to be discontinued commences to the old road running northerly from the Bristol farm, he would be compelled, in order to reach that road, to travel over 470 rods instead of 138 rods by that part of the road ordered to be discontinued; and any one
desiring to travel from the old road north of the Bristol farm to the southern termination of the Bristol road, or from any point east of the southern termination of that road to the old road, he would be compelled (if the road embraced in the order should be finally discontinued) to travel a distance of 116 rods greater than by the road embraced in the order appealed from. I cannot account for the affirmation of the order appealed from, except upon the erroneous theory that the certificate of the freeholders and the order of the commissioner established a prima facie
case which, if not overthrown by adverse proof, established the uselessness of the road to supply the necessities of the traveling public. It may be, as the counsel for the respondent asserted, that the road "had been used so little than a wagon track could scarcely be seen" upon it; but the return made by the referees of the proceedings before them does not show it to be so. The evidence shows it to be less useful than before a mill upon it was burned and the plank-road constructed; but it does not, in my judgment, come up to the standard of prima facie
proof that the road had become so useless that the necessities of the public did not require its continuance. My brethren, however, are of opinion that the evidence warranted the conclusion that the plank-road and the one described in the order were not, under the circumstances, both necessary for public use, and that the probable outlay necessary to keep the road, embraced in the order, including the bridges upon it, in repair, rendered it quite proper that it should be discontinued; and, hence, that the order appealed from should be affirmed.
All concur.
Judgment affirmed.