27 Barb. 543 | N.Y. Sup. Ct. | 1858
A very important, if not controlling question, lies at the threshold of this case, which is, whether the plaintiff can maintain the action, conceding a cause of action to have accrued against the defendant. Unless it can be shown that the contract, which the plaintiff asks to have annulled, is the contract of the town, or the right to the highway, which the defendant claims to have acquired, under it, was the property of the town, it is difficult to see how this _ action can be maintained. Bach town as a body corporate has capacity to sue and be sued. (1 R. S. 337, § 1.) Biit such capacity is, necessarily, I think, restricted to cases where the assertion of their corporate rights, or the enforcement against them of their corporate liabilities, require such proceedings.
The title to the lands over which the highway passed, remained in the respective owners, as before. Did this right of passage belong to, or was it in any sense the property of, the town, as a body corporate ? I think not. The right was in the public, and not in the town. At common law, in England, every highway was said to be the king’s, but the right was only a right of passage, for himself and his subjects. Here it must be in the people, not of any particular town or county, but of the whole state. Although by law the damages for lands taken for highways, are to be levied and collected in the town within which the highway shall be situated, it does not follow that the right acquired by the appropriation vests in the town and becomes part of its corporate property. Assessing the damages upon the town is only a convenient mode adopted for distributing the public burthens. The statute does not vest the right, when acquired, in the town, and it must, consequently, belong to the sovereign or body politic. It has been shown, I think, most clearly and conclusively, by Selden, J., in Morey v. The Town of Newfane, (8 Barb. 643,) that towns, as such, have no control over the highways, within their respective boundaries, and are in no respect liable for their unsafe condition. The commissioners of highways, to whom the statute commits exclusively the care and superintendence of highways and bridges in their respective towns, although town officers, in respect to their powers and jurisdiction, are not agents of their towns, in the sense of having charge of town property. They are public servants, charged with the care and superintendence of interests in which all the people are equally interested. The right is taken for public use, and does
Welles, Smith and Johnson, Justices.]
Having come to this conclusion, it is wholly unnecessary to discuss the other questions which are presented in the case, and which were passed upon by the referee. It will be in time to examine and decide those questions when a party shall be found competent to come into court, and claim the sweeping relief demanded by the plaintiff in his complaint in this action. It is enough for this case that the plaintiff, having no interest in the right, can maintain no action.
Judgment affirmed.