92 N.Y.S. 530 | N.Y. App. Div. | 1905
Lead Opinion
The judgment and order should be modified as hereinafter indicated, and, as modified, affirmed, without costs to either party.
The defendant was organized in March, 1902, and is engaged in the business of quarrying and selling Medina sandstone from quarries in the plaintiff town, and is, and since its organization has been, the owner in fee simple of a large tract of land in said town, in and upon which are valuable deposits of the sandstone before referred to. Extending across this tract of land in an easterly and westerly direction is a highway of said town, four rods wide. The defendant is the owner of this land, within the limits of the highway, in fee simple, subject only to the public easement for-highway purposes. -The stone under the highway lies from 10 to 12 feet below the surface of the ground, and is from 12 to 20 feet in thickness. In order to remove the stone, it will be necessary to excavate from 32 to 40 feet below the surface of the ground. The length of the quarry along the highway is about 800 feet. The highway is in the country, and not used by a great . many people. Former owners of the quarry had excavated into some part of the highway, and there is no doubt that the defendant intended -to continue the excavation further across the highway, constructing
This action was commenced to restrain such interference with the highway, and resulted in the judgment appealed from, which provided:
“That the defendant be perpetually enjoined and restrained from digging or making any excavations in or obstructing the highway in any manner; provided, however, that the defendant shall have the right to quarry out the stone underneath the said highway, but while doing so it must maintain the same open to the passage of the public, and unobstructed to the full width of the highway, and keep the same in a safe and passable condition, and not interfere with the free and uninterrupted use of said highway for public travel, or the working and control of said highway by the highway commissioner of said town.’’
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. The appeals are from the judgment and this order.
It cannot be denied that the defendant has a legal right to quarry and take the stone from under the highway. It has the fee to the land within the limits of the highway, and may remove the stone. The pub-lic has a legal right to use the land for highway purposes, and this right must not be unnecessarily interfered with by the defendant in quarrying and taking out its stone. So far the parties do not disagree, and no authorities need therefore be cited to sustain the proposition. The only question in dispute is as to the manner in which the quarrying may be done so as to protect defendant’s property rights and enable it to remove the stone, and yet not unnecessarily interfere with the public use of the land for highway purposes. The plaintiff’s claim is expressed in the terms of the judgment made by the court, but the injunction provided for by such judgment, instead of regulating the doing of the work so as to protect the public rights in the highway, practically prohibits the quarrying of the stone entirely. It provides for a perpetual injunction against any excavation in or obstruction of the highway in any manner, and then permits the quarrying of the stone, provided that, while the work is being done, the highway is maintained open and unobstructed to its full width, and there is no interference with its uninterrupted use for public travel or work or control by the commissioner. It is quite apparent that the quarrying cannot be done without some obstruction and interference with the highway in some part of its width of four rods. The highway is in the country, is little traveled, and there is no reason why it should be kept open to its full width while the quarrying is going on, or, if bridged, why the bridge should be four rods wide. Much the safer and better way to take care of the travel while the quarrying is being done would be to build a road south of and adjacent to the highway, and use that. The defendant would have to prepare and keep such road in good condition. Very likely the commissioner cannot be compelled to permit such a temporary change in the roads, but if he would do so it would simplify matters very materially. In case of his refusal to accept such temporary road, the defendant should only be required, while quarrying, to keep a passageway open within the limits of the highway upon the surface of the ground, or
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 Justice WILLIAMS upon notice of five days.
■ MCLENNAN, P. J., and SPRING and HISCOCK, JJ., concur.
Dissenting Opinion
(dissenting). I am unable to concur in a modification and affirmance of the judgment, as suggested in the opinion of Brother 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 think this shows that it is not a temporary use of the highway, and that the contemplated use by the defendants is so utterly inconsistent with the use of the premises as a highway as to destroy its usefulness for the passage of the public.
I find no fault with the general proposition that a temporary use of a highway by an adjoining owner, under certain circumstances, is justifiable, but it must not unreasonably interfere 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 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
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.