*1 63 SNYDER v. TRUMPBOTTR. Statement of Case. SNYDER, Respondent,

ISAAC v. WILLIAM H. TRUMP- Highways BOUR of the Commissioners of Others, Town Appellants. and JOHN Saugerties, PLASS, Highways&emdash;Width Lands&emdash;Injunction. Road&emdash;Improved Where the Commissioners order a to be laid out for a Highways ,jmd of the distance, in distance, three rods residue for which covers the bed or track of an more than used for years, two rods width, thereby are not vitiated. proceedings An injunction will not to High- for such lie restrain the Overseer of cause ways from opening such road. This Defendants from a appeal by judgment Court in favor of the Third Supreme rendered Plaintiff, District.

The action was restrain Defendants from brought open- which was ing highway upon premises claimed the Defendants to laid out have been legally and that who was overseer highways, under the entered town, highways direction of the commissioners for purpose road.

The cause was tried before Mr Justice without a Gould, jury, the Ulster Plaintiff Circuit, May, 1860, pre- vailed.

The Justice beforewhom the was tried found the cause following facts:

That on the 14th John Plass Abraham November, A. Dewitt made application writing town of out a said highway Saugerties,

town. In said route of the the re- termini, and spective -which of land the same parcels would run were residents of were both given. applicants and liable therein. The town, assessed labor the Oase.

Statement of *2 of a to be notices posted meeting the caused proper applicants examine the the 26th of November, 1855, on freeholders of the of the to the necessity and respect certify ground road. freeholders twelve the 26th of November, 1855, competent

On examined the sworn, route, town of the appeared, and a and certificate the reasons for signed heard against in the and the same was hands road was placed necessary, commissioners highways. meet notice that they commissioners thereupon The gave and tó decide June, 1856, upon application; 21th of on the de- heard the interested and met and parties on that day laid and made an order to out, that the road should termined a of the and on the 14th road; effect, incorporating in the officeof the town clerk of filed the same 1856, of August, Saugerties. laid out the road so between the

That points portion a. the old order called point it strikes said “ neai known as old churchland lane, the centre was laid out by a apple-tree,” hickory-tree, range bed of old road used as over covering the track seven over a years, being public highway so the west a side situated as to hill, on wide, by feet bounded on the east widened side, part conveniently only for a road two rods wide. and order was only of the survey of the'road included between at the That portion and the churchland lane, line of Isaac Snyder the division into cm oroha/rd the Plain- sv/rvey line easterly and over. of seven years tiff of growth Plaintiff 25th of appealed August, On Referees were commissioners, thereupon determination to hear the Court the Ulster County appeal. by appointed and affirmed the acts of Referees in the manner directed were ascertained land-owners statute. directed the removal of fences thereupon

The commissioners Opinion by Milleb, so laid out, statute. That required

upon their determination into effect the in order to carry directed the John Defendant; of the road district in overseer to enter question, regular excavate, the road open same. dig, this order, Plass proceeded to pursuance That discharge and entered his portion duty, road for that

taken for said commenced the purpose, work but no excavation; digging entering upon, injuries Plaintiff, were complained digging, that section of the road laid out but two rods onor wide, *3 of section which bordered survey on the Plaintiff’s orchard or but such was on that door-yard, digging out laid three rods and did not extend into or portion wide, adjoin the orchard.

The Justice also found, others, conclusions law as among in v. Plass IT. (28 Y. reported Snyder 465).

The said Justice, upon facts, decided as foregoing matter law, that as inasmuch one part was laid out less than rods the order was and wide, void, three commission- all under ers, them, acting trespassers, ordered an Defendants. injunction against made are suffi- questions stated in the ciently opinion.

The Defendants excepted appealed G-eneral Term, where at the Circuit was judgment affirmed, Defendants to this appeal Court. H.

John Reynolds Appellants.

Erastus Cookefor Respondent. J. v. Plass In Snyder N. Y. (28 the Plaintiff in 465)

Miller, this action action to brought recover for an alleged unlawful Defendant, was an overseer of high under the directions of ways, acting commissioners of high who are in Defendants ways, case, in road in working portion ques and it was held that the Plaintiff tion, could not recover. 5 TRTTMPBOTJR. in of the Court part ground,

The decision ordered where a road was in three rods for the width, of the distance

laid out for part or track of an old was the bed which distance, residue of two rods than proceed- used for more years, void rendered vitiated and provision are not ings two wide. rods a road to be opened only order allowing the first order It was further held, lay- regarding of intersection out the road, up ing of the old road to the residue valid, description two rods and for the opened recorded, having purpose the whole consistent order to that effect, (cid:127)width a subsequent the commis- within powers and harmonious, entirely one line the fact that also decided that It was sioners. four an orchard over years’ extended into growth, to make out a case within the itself sufficient language not of out of a of the statute laying against prohibition orchard, such case yet benefit of fruit-trees owner of the have no deprive right n an order for of' of four or over, by an orchard the growth years width of two rods. The facts of an old road to the the opening in this and the one are essentially alike, case bar, *4 the seems to be that one cited the difference only apparent while the case was for the premises, to restrain the commission- is for an under -consideration injunction a In to make dis- from such entry. attempting making any ers not the embraced tinction between as a view of them, subject counsel for the in the case it is claimed decided, by Respon- the line of the dent that there is identifying impossibility that certified for, as laid road, applied by in the commis- and described notice freeholders by sioners. exists from is that such

It not any difficulty entirely apparent from -ofthe case. It does not findings an examination appear it else- I am unable to discover trial, at the shop The notice describes commencing where. TRUMPBOUR. SNYDER v. Opinion a course Wolven, northeasterly Jeremiah running to the churchland near lane,

farm thence Jr., of Andrew Dewitt, or over the of Isaac passing house Snyder, through and the lands lands Jeremiah Wolven, unimproved improved land of Plaintiff, of several persons, including as located terminus must be think, according considered, as the old churchland at the centre of the road known to reach with the lane, conformity application, although road is in the terminus the old included survey.

As held seen, we have the Court have proceedings oyer and thus not a void because the route the termination of as to passed question it as new we are not to treat pre- liberty question sented in the former the case. hearing

It in a different direction is said that the is reached terminus far at from in the and so variance that described notice, void on as to render original proceedings direct evidence. Ho map account. This fact proved from or such was introduced to establish any divergence diagram and con- nor for, any presented applied in the or the case cited. sidered Court below im- The road as was no doubt located surveyed lands in the those which mentioned proved original besides land of the and would notice, appear through improved it is no manifest from the case or itself, but means followed, that the route was not findings, the one new route was different essentially any pursued the cause On the the Justice tried contemplated. contrary, has found that the after the route freeholders, examining that was did certificate make proposed highway, sign that the commissioners requisite necessary proper; gave a certificate out the did determined notice, sign highway, to a survey *5 of such determination describing according the facts had to be made. With caused they previously be real foundation it is difficult to see how there can any presented, fjr differed made that its course the claim S1TYDER [J UNE, Milleb, from the one for. The mere fact

entirely aj>plied that the road lands other than passed improved those through mentioned as such in the of itself does not establish application, the material to have and at been most made, shows that change alleged lands to stated he lands. unimproved, actually improved It is also as a feature the case to which the urged attention of the Court was not directed argument case that the notice of the cited, of the commissioners was meeting to to the road over necessary jurisdiction lay give improved land.

The case and the of the Court show notice of findings was and that the served, before to out the road, caused notice made determining writing the time and place each of them, specifying subscribed to decide meet to application, where occupants the respective law form of in due served was to run. which the land through tracts several Iands of the that the did specify notice that the fact basis which appears'to lands, were improved and others, a vital nor of mentioned, think made, I of the objection the lands unimproved. when necessary notice Ho character. ( 473, 4, 55-62, 474, 1, pp. Tit. Art. 16, § Part Chap. S.R. to the occupant been given having And notice ed.) 1 Vol. Ed. stated erroneously because not defective land, sufficient, It was were unimproved. lands improved some had notice of, that the party to confer jurisdiction think, the application. to be heard upon opportunity, abundant road over a new the establishment insisted also It is was void for rods wide, as two described the route, that part no allows the statute Because First: reasons. two Plain- was laid out That it Second: laid out; he The decision of the statute. in defiance orchard tiff’s and covers these objections. I think, disposes case had the that the holds in his J., opinion, Johnson, made have descriptive road to in respect power and to order it record, entered of it, description *6 w v. TRUMPBOUR. SNYDER Opinion by Milled, to the width of two rods that this was least; opened precisely authorized to what had what they done, strictly it interference with the orchard. do unless be by statute, that As holds that the one he orchard, finding not into was orchard, line enough survey it establish that would interfere orchard, have been that the trees came within the should survey, proved use and the owner would be beneficial deprived of the trees enjoyment opening high- way. Denio’s conflict with as understand,

Judge opinion, these views on as we And, either points suggested. if order both of learned that even

seen, Judges agree the old it did not affect validity opening illegal, It would therefore the order out the new road. appear laying laid out and Avhether the old road unimportant properly as Court in this well case, for it is opened, proved of and of the Defendants one that the entry complained the Defendants and to restrain cause, the trial of this proved upon was made on which this action is from brought, proceeding and did not three which is rods of the road The two cases are orchard. extend into or adjoin to discover a it is not identical that easy similar and so entirely disregard them which justify distinction between this involved upon appeal one cited authority. questions and if the action as res adjudicate, must therefore considered under of the Defendant recover Defendants here, the directions are. that an action then it follows necessarily sustained, cannot be road in the Defendants to restrain will lie question. based our consideration, are pressed

Some points case are involved that the questions the hypothesis I have sound expressed if views but undecided; to discuss them. not necessary maintainable, ?0 TRÜMPBOTTR. X should at the Circuit Term and the General

The judgment *7 with costs abide trial new and a granted, be reversed, event.

All reverse. TIFFANY,

JOEL State Reporter.