Ryan v. Preston

66 N.Y.S. 162 | N.Y. Sup. Ct. | 1900

Smith, Wilmot M., J.

If a portion of the highway may be appropriated as a sidewalk for the exclusive use of pedestrians, there seems to be no reason why another portion of the highway may not be appropriated for the exclusive use of bicycles.

In the case of Palmer v. Larchmont Electric Company, 158 N. Y. 231, it was held that when land is taken for a country highway, leaving the fee in the abutting owner, it is impliedly dedicated to the uses which the public may in the future require. In that case it was decided that the erection of poles and electric lights in a highway, without compensation to the abutting owner, was permissible, because, that was such a use of the highway as the public required. The use of bicycles has become so extensive and almost universal that the public require that a portion of the highway be set apart for their exclusive use. And upon the principle laid down in the ease above cited, the owner of the abutting land is not entitled to compensation by reason thereof.

The provisions of section 2 of the Side Path Law (L. 1899, ch. 152), that “ Ho side path shall be constructed upon or along any regularly constructed or maintained side walk, except upon the consent of the persons owning the abutting lands ” is somewhat obscure in its phraseology, but taking the whole section together it is clear that the words “ upon ” or “ along ” are synonymous, and that the provision was intended to prevent the appropriation of any portion of a regularly constructed side walk for a bicycle path, and was not intended to forbid the construction of a bicycle path beside of or adjoining any such side walk.

The defendants are entitled to judgment, dismissing the complaint, with costs.

Complaint dismissed, with costs.