32 N.Y.S. 358 | N.Y. Sup. Ct. | 1895
This proceeding was instituted for the procurement of a peremptory writ of mandamus which should command the commissioners of highways of the town of Tuxedo to remove the obstructions from a certain road in that town, which begins on the easterly side of a road leading from Arden to Bailytown, and terminates at a road leading from Dunderburg to Cedar Pond. An
The character of one of the mountain roads upon the same tract of mountain land was involved in the case of Harriman v. Howe, 78 Hun, 280, 28 N. Y. Supp. 858. That was an action brought by Harriman against the commissioners of highways to determine the character of the road, and the proof of use there was substantially the same as it is here, and it was there decided by this court that proof of user alone of a road was insufficient to show it to be a public highway; that such use must be associated with some act showing such use to be claimed as a right, hostile to and independent of the will of the owner, such as reparation or the assumption of control of the road in some ostensible manner; that a private way, opened by the owners of land through which it passes for their own use, does not become a public highway merely because the public are also permitted for many years to travel over it. The case of Speir v. Town of Utrecht, 121 N. Y. 420, 24 N. E. 692, is an authority for these conclusions. The reason and authority for our conclusion in that case are set forth with sufficient particularity and fullness, and the case is entirely decisive of this, with the exception of one point raised by the respondent, which we will examine now.
It is claimed in this case by the relators that section 100 of chap
The language of the new section is this:
“Highways by use. All lands which shall have been used by the public as a highway for a period of twenty years or more shall be a highway with the same force and effect as if it had been duly laid out and recorded as a highway, and the commissioners of highways shall order the overseers of highways to open all such highways to the width of at least two rods.”
The old statute was this:
“All roads not recorded, which have been or shall have been used as public highways for twenty years or more, shall be deemed public highways.”
The words “used as public highways,” as they are employed in the old statute, received a construction in the case of Speir v. Town of Utrecht, 121 N. Y. 420, 24 N. E. 692; and it was there held, as we have seen, that they required more than mere user. The words in the new statute are “used by the public as a highway,” and they are of the same purport and meaning as the words of the old statute. The new statute requires the use to be by the public, and the old statute required the roads to be used as public highways; and they can be used as public highways only by the public, and therefore the use required by both statutes is the same. It is impossible to read the provisions of the two statutes in reference to the use of the roads which is necessary to create a right by prescription without observing the similarity between them down to the provision in the new statute for opening the roads. To that point the language in both has the same import and signification. Although the phraseology is slightly different, yet the requirements in relation to use by the public are the same in both.
But that does not exhaust the argument, and we must take a broader view of the subject. In the first place, it is to be observed that, wherever changes are made in the highway law of the state by the statute of 1890, they are all plainly specified; and, if it had been the intention of the legislature to make the radical change in the existing highway law for which the relator contends, such intention would have been expressed in unmistakable language. A statute which would make mere user by the public of the mountain roads in this state by the few persons who have occasion to use them sufficient to constitute them public highways, with all the rights and obligations pertaining thereto, would effect a fundamental change in the highway law, and involve important and serious consequences. It would convert wood roads, which have been used by persons in the vicinity for their convenience, into public highways, without compensation to the owners of the land, and be thus violative of the constitution of the state; and it would devolve upon the towns the duty of their reparation, and render them responsible for injuries to persons and property by reason of defects and obstructions therein. In this very case such a construction of the statute would place 50 miles of mountain roads in such a category. If the legisla
The following rule, prescribed in the case of Speir v. Town of Utrecht, supra, is applicable to this case:
“But the mere fact that a portion of the public travel over a road for twenty years cannot make it a highway, and the burden of making highways and sustaining bridges cannot be imposed upon the public in that way. There must be more. The user must be like that of highways generally. The road must not only be traveled upon, but it must be kept in repair, or taken in charge and adopted by the public authorities.”
We think all this is implied in the words “used as public highways.” The judgment should be affirmed, with costs. All concur.