Noyes v. Chapin

By the Court, Savage, Ch. J. The only question in this case is, whether the agreement between the parties is void by the statute of frauds. The substance of the tenth section of that statute is, that no interest in lands shall-be conveyed, unless by a writing, or by act and operation of law. By the 16th section of the act to regulate highways, 2 R. L. 275, it is declared that it shall not be lawful to lay out any road through improved land without the consent of the owner, unless upon the application of twelve freeholders, certifying [464] upon oath that such road is necessary and proper. There is no doubt but that one individual cannot acquire any interest in the lands of another, unless by writing, or operation of law; and this is true of an easement, a right of way for instance, except a private way provided for by statute. But by the statute regulating highways it is clearly provided that the public may acquire an interest in lands, an easement, a right of passage, by the consent of the owner, without a writing. This is not inconsistent with the statute of frauds, for it is by act and operation of law. The commissioners have no jurisdiction to lay out a road through improved land, without either the consent of the owner or occupant, or an application under oath of twelve freeholders. If the consideration of the promise in this case was the consent to have the road laid through the land of the .plaintiffs, then clearly no written consent was necessary; but it would seem that the consideration of the promise was an agreement to discharge the town from any damages which the plaintiffs might have claimed, and to look to the defendant for the $>75, in lieu of the damages which might otherwise be assessed in their favor. Such damages are not an interest in lands, they are the compensation made for the occupation of the plaintiffs’ lands by the public. The agents of the public had determined not to lay out the road at the expense of the town. The defendant, it seems, was anxious to have the road, and therefore agreed to pay the stipulated damages; no writing was necessary under the revised laws of 1813, to relinquish damages for laying out a road, although now by the revised statutes "it is necessary. The cases relied on by the defendant in error are good law, but do not seem to me applicable. The case of Crawford v. Morrell, 8 Johns. R. 256, shews that a contract to pay for land occupied as a road, was considered by the court as a valid contract. The same doctrine is held in Storm v. Snyder, 10 Johns. R. 109. I am of opinion that no writing was necessary, either to give consent to lay out the road, or to relinquish the plaintiffs’ damages. The road was in fact laid out by the consent of the plaintiffs, they declaring that they made no claim upon the public for damages. The plaintiffs have [465] performed the consideration, and the defendant must perform his promise. Judgment reversed, costs to abide the event, and venire de novo to be awarded by Cortland common pleas.