36 Barb. 164 | N.Y. Sup. Ct. | 1862
The commissioners of highways of the town of Eorthfield, in the county of Richmond, made an order in the usual form, laying out a public highway therein, upon the application of one Daniel Willis. Erom this order James Ridgeway, the relator, appealed to the county judge, who thereupon duly appointed Lawrence H. Cortelyou, John H.
The case of The People v. Goodwin (1 Seld. 568) is authority for the rule that, when “inferior magistrates are required by writ of certiorari to return their proceedings, it must appear, affirmatively, that they had authority to act. And when their authority and jurisdiction depends upon a fact to be proved before themselves, and such fact be disputed, the magistrate must certify the proofs given in relation to it, for the purpose of enabling the higher court to determine whether the fact be established.” In proceedings to lay out and open public highways, the existence of certain facts is necessary to give the commissioners jurisdiction; such
This view, if it be correct, would dispose of the decision made by the referees in dismissing the relator's appeal, and entitle him to the relief sought for by this writ or by some other more appropriate to effect that object. I will, however, consider briefly, whether the relator was really without any right to appeal from the order of the commissioners laying out the highway. He was not an owner of the land through which the road was proposed to be laid, nor was he the person, or one of the persons, upon whose application the proceedings were instituted. To entitle a person to appeal from such an order, it is said he must stand in the relation of an owner whose land is to be taken for the improvement, or of an applicant who has set the proceedings in motion. One of these relations can alone make him a party to the proceeding. And no other than such a party can maintain the right to appeal, because, in respect to all other persons, the injury resulting from the proposed highway would be general and not special. We are referred to the case of Davis v. Mayor &c. of New York, (4 Kern. 506,) where the court of appeals held that an action does not lie at the suit of a resident and tax-payer of the city who does not own real estate on a street where a railway is proposed to be laid, and to whom it will not be specially injurious, to prevent its construction. But the court also held that the railway proposed to be laid down in Broadway would have been a public nuisance, in respect to which no private individual could maintain an action without showing some special injury resulting therefrom to himself. Nor would equity entertain jurisdiction, unless the public nuisance occasions, or is likely to occasion, a special injury to an individual which could not well be compensated in damages. This is the rule of the common law
It is to be observed that the right of appeal from the order of highway commissioners does not depend upon any general rule of law, such as obtained in the case referred to. It exists by statute, in regard to a special class of public improvements affecting a particular locality. The highway act gives the right of appeal to “ every person who shall conceive himself aggrieved by any determination of the commissioners of highways, either in laying out, altering or discontinuing, or in refusing to lay out, alter or discontinue any road. (§ 8 of the act of the 14th Dec. 1847.) This is sufficiently comprehensive to include the resident freeholders and taxpayers of the town where the road is located. And its general terms show that the legislature had no intention to restrict the right to the applicants for the road and those persons over whose lands it was proposed to lay it out. The burden of paying the damages for the lands taken for the road is cast upon the tax-payers of the town and their property therein, as are also the expenses of making and maintaining the bridges thereon. The burden of performing the labor and keeping the road in repair, is imposed not upon the people of the town generally, but upon the people of the particular road district where the road is located. It may be that burdens of this character may become oppressive and grievous, and it is certainly wise and just that the persons charged with their payment should have an opportunity to be heard upon the legality and necessity of the improvement. These considerations refer exclusively to the creation of new roads and highways. But what shall be said of the right of appeal from orders of the commissioners altering or discontinuing roads already in existence, and, it may be, of immemorial use. The same sentence confers the right of appeal in both cases. To entitle a resident freeholder and tax-payer to be heard upon appeal from an order discontinuing a public road which he, and those under whom he claims, have used time
nevertheless, I think the relator has mistaken his remedy. It was the duty of the referees to hear the proofs and allegations of the parties, and make a determination which should reverse or affirm the order of the commissioners. This they
An order should be entered quashing the writ of certiorari and all the subsequent proceedings, without costs to either party, and without prejudice to any other remedy which the relator may be advised to pursue.
Sckugham, J. concurred.
Emott, Brown and Scrugham, Justices.]
Without expressing any opinion whether Ridge-way could appeal, I think the proceeding by certiorari was not the proper remedy.
Proceedings quashed.