People Ex Rel. Dinsmore v. . Vandewater

Haight, J. These proceedings were instituted by a petition on behalf of the relator, a resident taxpayer of the town of Hyde Park, for a writ of certiorari to review the action of the town board and highway commissioners of that town.in altering a part of the Hew York and Albany post road. On the 11th day of October, 1900, one Ogden Mills, a taxpayer of the town, presented an application to the commissioners of highways for an alteration in the Hew York and Albany post road for a distance of about fifteen hundred feet, running through his premises. It was represented that the proposed change would do away with a bad curve in the old road, avoid a hill and eliminate the danger to horsemen owing to the close proximity of the old road to the railroad. The town board consented to the proposed change and the highway commissioners made an order therefor in accordance with the application, providing that the land forming the bed of the old highway should, upon the completion of the proposed alteration, revert and become the property of the petitioner. Thereupon the new highway was constructed in a substantial manner, trees set upon the sides and the same was accepted by the commissioners of highways, and permit granted to the petitioner to close the old highway. The learned Appellate Division appears to have reached the conclusion that the action of the local authorities in permitting the alteration was void and unauthorized, by reason *504 of the provisions of chapter 423 of the Laws of 1896. That act is entitled “ An act to preserve forever the Hew York and Albany post road as a state public highway.” The provisions are as follows: “ § 1. The old established road along the valley of the Hudson River from the city of Hew York to the city of Albany, known as the Albany post road, shall be a public highway for the use of the traveling public forever. § 2. The said" highway shall be kept open and free to all travelers, and shall not be obstructed in any way by any obstacle to free travel. § 3. Ho trustees of any village or corporation of any city upon its route, or board of commissioners of highways of towns, or any other person or board whatever, shall have any power or authority to authorize or license the laying of any railroad track upon said highway, except to cross the same, and any such action shall be void and of no effect. § 4. This act shall not apply to any portion of said road within the city of Hew York, nor shall it apply to the road of the president, directors and company of the Rensselaer and Columbia turnpike, nor to the village^ of Sing Sing or Peekskill, in Westchester county.” In construing statutes we should have in mind the legislative intent and the purpose sought to be accomplished. It will be observed that there is nothing in the provisions of the statute that in any manner limits the jurisdiction or powers of local officers over the highway except in one particular. By its first and second sections it is provided that it “ shall be a public highway for the use of the traveling public forever,” and that it “ shall be kept open and free to all travelers, and shall not be obstructed in any way.” These provisions are but the repetition of the law as it exists with reference to all of the public highways of the state. They are all under the control of the legislature, and are required to be kept-open and free to the traveling public forever unless they are discontinued in such manner as the legislature directs. But by the provisions of section three of the act we find express limitations placed upon the board of commissioners of highways of towns or other local officers thereof prohibiting them from *505 authorizing or licensing the laying of any railroad track upon the highway except to cross the same. Here we have, in clear concise language, disclosed the purpose and evident intent of the legislature. It was not to change the jurisdiction of officers over the care and management of the highway except to prohibit them from permitting the laying of railroad tracks therein, and this is emphasized by the provisions of section four of the act, wherein there is excepted from the operation of the statute, doubtless, for the purpose of permitting the operation of existing or contemplated street railroads, that portion of the highway lying in the city of Hew York, in certain villages mentioned and the Bensselaer and Columbia turnpike. With this exception the powers of the town board and of the commissioners of highways of the town of Hyde Park remain unimpaired, and, therefore, if they had the power to alter and improve the road prior to the passage of this act, then such power still exists and may be exercised by them. It is now contended on the part of the respondent that the highway in question was a state road and .that the town authorities had no power to alter the same unless authorized by the board of supervisors of the county in accordance with the provisions of section 77 of the County Law. That statute provides as follows: “ The board (referring to the board of supervisors) may authorize the commissioners of highways of any town in their county to alter or discontinue any road or highway therein, which shall have been laid out by the state under the same conditions that would govern their actions in relation to highways that have been laid out by local authorities.” This is a substantial re-enactment of chapter 317 of the Laws of 1882 which was evidently intended to take the place of chapter -83 of the Laws of 1817, which is as follows: “ Whereas, great inconvenience has arisen from the want of authority in the commissioners of highways of the several towns in the state to alter and amend such highwa/ys as are laid out Toy special acts of the legislafaore, commonly called state roads; and in order to prevent application being made to the legislature for every alteration in said roads as are sup *506 posed to be necessary — Therefore be it enacted by the people of the state of New York, represented in Senate and Assembly, That it shall be lawful for the commissioners of highways of any town in this state, through which a state road passes, on being applied to by twelve freeholders of such town and with the consent of the commissioners of highways of the adjoining towns through which said road passes, to regulate and alter such road, in the said town, if in their opinion the public good and convenience shall require the same: Provided, however, That no such alteration shall alter the general route of the road: And, also, That the provisions of the act, entitled ‘ an act to regulate highways,’ relative to the alteration and amendment of public roads, shall be held to extend to such alteration, as aforesaid, of any state road.” The recitals preceding the enactment indicate very clearly the purpose sought to be accomplished by the legislation. _ Numerous special acts of the legislature had been passed, after the organization of the state, laying out what were called state roads. Many of these roads were located and constructed through the agency of state officers with state aid and not by the officers of the locality through which the road was laid out. It was with reference to these highways that the inconvenience arose with reference to needed alterations, and the purpose of the act was to avoid application to the legislature for leave to make every change deemed necessary, by giving the power to make such alterations to the commissioners of highways of the towns upon application of twelve freeholders, etc. But it will be observed that there is nothing in this legislation, or that of chapter 317 of the Laws of 1882, or of section 77 of the County Law, that in any particular purports to limit or deprive commissioners of highways of any of the powers that they theretofore possessed with reference to the altering of highways. It is, doubtless, true that as to highways that have been laid out by special statutes the power of the commissioners of highways to change and alter the same is dependent upon the legislation to which we have referred, and that under the County Law their power is now dependent upon the consent of the board of *507 supervisors of the county; hut these highways are limited to those authorized by the special acts of the legislature and do not include such highways as had before been given over to the care of the commissioners of highways of towns with power on the part of the local officers thereof to make needed alterations. This brings us to a consideration of the history of the road in question and the legislation bearing thereon. The New York and. Albany post road was constructed under the provisions of chapter 131 of the Colonial Laws of 1703. It was a general statute entitled “ An act for the laying out, regulating, cleaning and preserving public common highways throughout this Colony.” It provides as follows : “ For the better laying out ascertaining, repairing and preserving the publick comon and general highways within this Colony. Be it enacted by the Govr. council and General Assembly of this Colony and by the Authority of the same. That there be laid out preserved and kept for ever in good and sufficient repair one publick comon & general highway to extend from the now scite of the City of New York thro5 the City and County of New York and the county of West Chester of the breadth of four rod English measure at the least, to be continue and remain forever the puhlick comon general road and highway from the said City of New York to the adjacent Collony of Connecticutt. * * * And one other publick comon general highway to extend from Kings Bridge in the county of West Chester thro’ the same county of West Chester Dutchess county and the county of Albany of the breadth of four rod English measure at the least to be continue and remain for ever the publick comon general road and highway from King Bridge aforesaid to the ferry at Crawlew over against the City of Albany.” It also contained provisions for the laying out of other roads connecting towns and villages to one another and to such convenient landing places as their situations will afford, “ for the better and easier transportation of goods and the commodious passing of travelers as direct and convenient as the circumstances of place will admit of.” Commissioners were appointed in the different *508 localities to carry out the provisions of the act, including Mew York, Dutchess and Westchester counties, thus laying the foundation upon which our highway laws have been constructed and perfected. Numerous amendments were made from time to time from which' the growth of the law is disclosed, which may be interesting as history, but are not essential to be here considered. As early as 1772 we find that in Dutchess county the freeholders and inhabitants of each precinct at their annual town meetings were required to elect three highway commissioners to regulate highways in their precinct. The provision of the law, as far as material, is as follows: “ That the commissioners, or the major part of them, in their respective precincts for which they shall be chosen commissioners, are hereby empowered and authorized to regulate the roads already laid out, and if any of them shall appear inconvenient, and am, alteration absolutely necessary, and the same be certified upon the oath by twelve principal freeholders of the said county, the commissioners may, provided they all judge it necessary, alter the same, and lay out such other public highways and roads as they, or the major part of them shall think most convenient.” (Colonial Laws, 1772, chapter 1536.) The next statute to which we call attention is chapter 31 of the Laws of 1779, after the organization of the state government, entitled “ an act for the better laying out, regulating and keeping in repair all common public highways and private roads in the counties of Ulster, Orange, Dutchess, Charlotte and West Chester.” This statute contains a similar provision to that found in the colonial laws already referred to. It gives to the commissioners of highways the power and authority “ to regulate the roads already laid out, and if any of them shall appear inconvenient and an alteration necessary * * * they may be required to alter the same in such manner as a majority of the commissioners in such town, manor, district or precinct shall judge meet and convenient.” This act was followed by chapter 43 of the Laws of 1797, a general act covering all of the state except the counties of Mew York, Suffolk, *509 Queens and Kings. In this act the commissioners of highways are given the power “ to regulate the roads already laid out and to alter such as they or a majority of them shall conceive inconvenient.” This statute, with some amendments, was continued in force until 1813, when it was superseded by the general highway act (Chapter 33 of that year) containing the same provisions, and this, with some amendments, was carried into the Revised Statutes and is now incorporated into our Highway Law. It is thus apparent that under the colonial laws as early as 1772, especially in Dutchess county where the alteration in question was made, commissioners of highways were empowered to alter highways that were deemed inconvenient, and that this power was continued by the state legislature in 1779 and by general laws in 1797 and 1813, and that the same power has been continued until the present day. It, therefore, follows that at the time of the passage of the County Law, or of chapter 317 of the Laws of 1882, or even of chapter 83 of the Laws of 1817, the commissioners of highways of towns had been given jurisdiction over the existing colonial highways, with the power to make such needed alterations therein as should be deemed necessary, and that that power has not been taken from them by the County Law. The Hew York and Albany post road appears to have been authorized by colonial legislation two hundred years ago. It was constructed and kept in repair by commissioners appointed in the localities, and for over one hundred and thirty years in Dutchess county it has been under the jurisdiction and control of the local highway officers of that locality, who have had the power to make such alterations as a majority of them should conceive to be convenient for the public. These authorities, in making the alteration complained of, appear to have conformed to the requirements of the statute. The improvement is one that they had the power to make, and it does not appear to us that the relator is concerned with reference to the validity of the title of Mills to the bed of the old highway. We, consequently, do not deem it important to discuss that question at this time. *510 The order of the Appellate Division should be reversed and the writ of certiorari dismissed, with costs.