190 A.D. 73 | N.Y. App. Div. | 1919
In February, 1917, the State Tax Commission assessed the relator on its franchise to operate its railroad in the streets of the city of Utica. Such assessment included the use of Hamilton street between Sunset avenue and Thorn street and Water street between Genesee street and Seneca street.
In the year 1914 a proceeding similar to this was instituted by the relator against the predecessors in office of the present State Tax Commission to review special franchise assessments against the relator for the year 1909 in reference ,to said streets. It was judicially determined in that proceeding that such assessments were lawfully made. Such determination establishes the existence of the streets as public highways of the city in the year 1909. There has been since that time no change in the occupancy or use of either street except that the relator contends that they had not been traveled or used as highways for six years prior to February, 1917, the time of the assessment in question and consequently that they had ceased to be highways under section 234 of the Highway Law (as amd. by Laws of 1915, chap. 322), which provides that “ every highway that shall not have been traveled or used as a highway for six years, shall cease to be a highway.” This is the only question left open for consideration.
The length of Hamilton street for the distance under consideration is 2,647 feet and of Water street 1,029 feet. The
The relator cites the case of Town of Leray v. New York Central Railroad Company (226 N. Y. 109). That case recognizes the principle that the use by pedestrians of a highway is a sufficient use to prevent its discontinuance. It held that under the circumstances there existing such use was insufficient because it did not- follow the Unes of the existing highway and also because it involved a violation of section 83 of the Railroad Law which prohibits a person from walking “ upon or along ” the track of a railroad “ except where the same shall be laid across or along streets or highways, in which case he shall not walk upon the track unless necessary to cross the same.” In this case the tracks were laid along the streets, and walking “ along ” the same was not, therefore, prohibited by the said statute, but only walking “ upon the track unless necessary to cross the same.” There is evidence that people walked “ along ” the track as they had a right to do and which right did not exist in the case cited. If the city had constructed sidewalks along these streets no question
The judgment should be affirmed, with costs.
Judgment unanimously affirmed, with costs.