Majority
p. 161In the Matter of the Application of Emily C. Chew, Petitioner, for a Writ of Certiorari Directed to the Board of Trustees of the Village of Babylon in the County of Suffolk, Respondent. Second Department, October 8, 1909.
Headnote
Municipal corporations — laying out village street—filling in bank of creek.Village authorities, in laying out a street on the border of a shallow tidal stream, may bridge or fill in a narrow jog or spur on the creek extending into or a little over the proposed highway. Such filling in is not an encroachment upon the creek.
Certiorari issued out of the Supreme Court and attested on the 27th day of March, 1909, directed to Chester 0. Ketcham and others, composing the hoard of trustees of the village of Babylon, commanding them to certify and return to the office of the clerk of the county of Suffolk all and singular their proceedings had in laying out a certain street in the village of Babylon, the relator being the owner of the land to be taken.
The course of the street is along Snmpwams creek, a small and shallow tidal stream which runs into Great South Bay. The relator owns a tract of land fronting on the said creek, and the proposed street will take the front thereof.
William G. Nicoll, for the petitioner.
Albert D. Haff, for the respondent.
The order of the village trustees laying out and opening the street gives its West line by courses and distances, and the East line as along a certain tidal creek, with an addition that such East line should “ extend out into the waters of the creek wherever necessary to make a width of fifty feet ” ; and the order makes two specified maps which were received in evidence and filed in the proceeding a part of the description. These maps show the said West line, and also the line of'the creek. Being on a scale of 100 feet to the inch, it appears that the width between the said two
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lines of the street is always at least fifty feet, except at one place, where there is a narrow jog or spur (viz., about .25 feet wide) on the creek which runs in to or a little over the said West line bf the street. It is therefore objected by the appellant that at that point the street will be of no width for the reason that it cannot cross the said jog or spur, inasmuch as that would be to encroach on tidewater, although the order of the commissioners permits that to be done. But to bridge or even fill up this trifling jog or break in the bank would be no encroachment on the creek. The custom is to fill them up. The permission of the order to carry the line out into the water where that would be necessary to get a road width of fifty feet was put in the order only because of the objection raised before the commission in respect to this spur or jog, and is superfluous.
The order should be affirmed.
Hirschberg, P. J., Jenks, Burr and Rich, JJ., concurred.
Determination affirmed, with costs.