102 A.D. 217 | N.Y. App. Div. | 1905
Lead Opinion
The judgment and order should be modified as hereinafter indb pated, and as modified affirmed, without cogts to either party,
This action was commenced to restrain such interference with the highway and resulted in the judgment appealed from, which provided “ that the defendant
After the entry of the judgment the defendant made a motion at a Special Term, held by the justice who tried and decided the case, to modify the judgment so as to permit a practical quarrying of the stone under the' highway, but the motion was denied and order entered. The appeals are from the judgment and this order.
The judgment and order appealed from should be so far modified as to permit the defendant to quarry its stone from the highway upon the conditions referred to above, and as modified affirmed, without costs to either party of these appeals.
The form of the order to be settled before Mr. Justice Williams upon notice of five days.
All concurred, except Stoves, J., who dissented in a memorandum.
Tbis is “plaintiff” in record, — [Rep,
Dissenting Opinion
I am unable to concur in a modification and affirmance of 'the judgment as suggested in the opinion of Mr. Justice Williams.
The evidence shows that the quarrying of this stone involves the entire removal of the roadbed and the construction of a new road ; and practically all that will be left of the present road will be the location ; that this work will occupy probably seven years, and that during this time the roadbed will be occupied by the workmen and machinery of the defendant in removing the soil, preparing for the actual quarrying, and then in the removal of the stone.
I find no fault witli the general proposition that a temporary use of a highway by an adjoining owner, under certain circumstances, is justifiable, but it must not unreasonably ihterfere with the rights of the public. The fundamental doctrine is that the public is at all times entitled to the free and uninterrupted use of the highways ; and that any one seeking to exercise rights in the highway must do so in subordination to the general rights of the public as above stated.
It seems to me impossible that a business such as quarrying stone may be conducted in a highway for a number of years without serious interruption to the rights of the public, and, therefore, it cannot be said to be a reasonable use.
The proposition may be summed up in the statement that the use of the premises as a highway and as a quarry are utterly inconsistent ; and the rights of the public being superior, the subordinate right of the owner must yield.
The evidence does not clearly show the cost of constructing the highway after the stone shall have been removed, but it would seem that common experience would indicate that such expense would be so great as to render the proposed reconstruction impracticable. While it may be said that the bond may be of sufficient amount to accomplish the rebuilding of the road, yet, unless we are satisfied that it is practicable, we ought not to inconvenience the public, or put the town authorities to the hazard of being compelled to reconstruct the road and recover the cost many years hereafter from the defendant or perhaps its bondsmen.
I think the judgment should be affirmed.
Judgment and order modified in accordance with the opinion herein, and as thus modified affirmed, without costs of this appeal to either party, the form of the order to be settled, by and before Mr. Justice Williams on five days’ notice.