69 N.Y.S. 100 | N.Y. App. Div. | 1901
This .action is brought against the bicycle sidepath commissioners for Suffolk county, appointed pursuant to the provisions of chapter 152 of the Laws of 1899, as amended by chapter 640 of the Laws of 1900. The relief sought is a judgment declaring those acts unconstitutional and void, and enjoining and restraining the defendants from constructing and maintaining a sidepath on the South 'Country road in or near Bay Shore in Suffolk county, upon which road the plaintiff, is a resident and an abutting owner. "Whether the provisions of the acts which limit the use of the side-paths to licensed bicycle owners are valid is not considered, the-inquiry being confined to the allegations of the complaint to the-effect that the plaintiff’s property is taken without due process of law; and for a public use, without just compensation.
It can hardly be claimed that the bicycle adds an additional burden in the use of the highway. Its status as a carriage or vehicle is now firmly established, and as such it is entitled to its place upon the public roadways. In this State the right is conferred by statute. (Laws of 1890, chap. 568, § 162.) The case of the construction'of a, railroad involving the exclusive use of a part of the road, for the benefit of a single individual or corporation, is not analogous. Here the right to use the highway in front of the plaintiff’s premises for general travel upon bicycles in common with other vehicles is undisputed, and the statutes complained of merely provide for a regulation requiring the bicycles to keep in a certain part of the road for safety and convenience. In itself such a regulation no more imposes an additional burden upon the use of the highway as affecting the rights of an abutting owner than would a statute requiring all vehicles going in either direction to keep to the right. If the acts are construed as giving "bicycles the exclusive use of the sidepaths the language of the learned trial justice at Special Term'is apt and pertinent. “ If a portion of the highway may be appropriated as a
In Cater v. Northwestern Telephone Exchange Co. (60 Minn. 539) the adaptability of the public easement in highways to the requirements of improvement and invention was well expressed by Judge Mitchell, as follows (p. 543): “ If there is any one fact established in the history of society and of the law itself, it is that the mode of exercising this easement is expansive, developing and growing as civilization advances. In the most primitive state of society the conception of a highway was merely a footpath ; in a slightly more advanced state it included the idea of a way for pack animals; and, next, a way for vehicles drawn by animals — constituting, respectively, the £ iter,’ the £ actus,’ and the ‘ via ’ of the Romans. And thus the methods of. using public highways expanded with the growth of civilization, until to-day our urban highways are devoted to a variety of uses not known in former times, and never dreamed of by the owners of the soil when the public easement was acquired. Hence it has become settled law that the easement is not limited to the particular methods of use in vogue when the easement was acquired, but includes all new and improved methods, the utility and general convenience of which may afterwards be discovered and developed in aid of the general purpose for which highways are designed.”
The plaintiff is not deprived of access to her property. The provisions of the statutes which assume to prevent the willful leading, standing, hitching, riding or driving of animals upon the sidepaths, expressly, except “ the purposes of access to, and egress from, lands abutting on the highway.” There is nothing in the law prohibiting the plaintiff from access to her property over each and every foot of the highway in front of her place. It may be that the use of
The judgment should be affirmed.
All concurred, except Sewell, J., taking no part.
Judgment affirmed, with costs.
