In re Mitchell — 85 A.D. 277

Majority

p. 277

In the Matter of the Application of William L. Mitchell, Respondent, to Lay Out a Highway in the Town of Ithaca, N. Y. Town of Ithaca and Others, Appellants.

Headnote

A decision of a County Court confirming the decision of commissioners opening a . highway is not appealable— cul de sac — when a deed, conveying land for a highway at the end of the highway sought to he opened, connecting it with another highway, is competent evidence.

Under section 89 of the Highway Law (Laws of 1890, chap. 568, as amd. by Laws of 1899, chap. 703), .the decision of the County Court, confirming the decision' of commissioners appointed in a proceeding to lay out a highway in a town, that the proposed highway is a public necessity, is final and cannot be reviewed by the Appellate Division.

Where, upon the hearing before the commissioners appointed in such a proceeding, it is urged that the proposed highway will end in a cul de sac and that such a highway is prohibited by law, a deed dedicating and granting to the public for highway purposes a strip of land which would connect the end of. the proposed highway with an existing highway, may properly be received in evidence, even though it appears that the grantor in the deed had previously conveyed to a railroad company for its right of way a portion of such strip.

. Appeal by the Town of Ithaca and others from an order of the County Court of Tompkins county, entered in the office of the clerk of the county of Tompkins on the 27th day of March, 1903,-confirming the decision of commissioners, appointed on the application of the respondent, to determine upon the necessity of a": highway and to assess the damages therefor.

This proceeding was instituted by a taxpayer of the town of Ithaca for the purpose of procuring the laying out of- a public highway in' said town, to commence at the easterly line of the city of Ithaca' and to extend in an easterly direction to a road known as Judd’s Falls road, intersecting said road at the north end of a cemetery known as the East Lawn Cemetery. The west end of said proposed road is about 60 feet from the Lehigh Valley railroad and about 100 feet from the easterly end of an extension of Dry den road, in the city of Ithaca, known as Maple avenue, so that if such: proposed road is extended in the city of Ithaca over said 100 feet, and said railroad it will connect with Maple avenue in said city. Maple avenue, although never having been formally accepted by

p. 278

the city as a street, has been used by the public as a highway since 1876. • •

Ho question is raised as to the regularity of the proceedings had before the commissioners nor as to jurisdiction. They determined that such proposed road was necessary. From the order of the County Court confirming their determination this appeal was taken.

Tompkins, Cobb & Cobb, for the appellants Town of Ithaca and others.

F. E. Tibbetts, for the appellant Lehigh Valley Railroad Company.

James L. Baker and Samuel D. Holliday, for the respondent.

The appellants urge that public necessity does not require the opening of the proposed road, but we cannot examine that question, as under the statute the decision of the County Court, confirming the decision of the commissioners that it is a public necessity is final. (Highway Law [Laws of 1890, chap; 568], § 89, as amd. by Laws of 1899, chap. 703; Matter of De Camp, 151 N. Y. 557 .)

On the hearing before the commissioners a deed from Franklin C. Cornell to the city of Ithaca, dedicating and granting to the city and the public in general for a highway a strip of land forty-nine and one-half feet wide, from the western end of the proposed road to the easterly end of Maple avenue, was received in evidence over the objection of the appellants and an exception was taken.

I think the deed was properly received under the circumstances existing at the. time it was offered. While it is true that the commissioners were not concerned with the question of opening any street or highway in the city of Ithaca, which was the subject of this deed, yet the record shows that the appellants had been urging before the commissioners that the proposed new road ended in a cul de sac and that such a road was prohibited by law. It is not necessary to determine whether such a road is so prohibited, but here was a situation where if the proposed road was not finally to end in a ■cul de sac, and was eventually to connect with Maple avenue, other and separate proceedings must be taken, first, under the city charter to lay out as a street the portion in the city of Ithaca, and, second,

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under the Railroad Law, to get the right to cross the Lehigh Valley railroad tracks.

Cornell had by a prior deed conveyed lands to the railroad company for its right of way and for its depot, reserving a private right of way to cross the tracks at grade, and he owned adjoining lands. While he could not by the deed objected to give to the publica highway over such right of way, yet, so far as the strip of land therein described and which he there dedicated to the public as a highway, was outside of the lines of the railroad’s right of way, the deed was evidence showing that one important step had been' taken in preventing what the appellants claimed was a situation fatal to the lawful opening of the proposed road. So regarded, no injury was done in receiving it. While under other circumstances the deed was not material, yet by reason of the attitude of the appellants I * think it was not reversible error to receive it under the circumstances presented here, any more than it would have been if it had been shown that proceedings were pending under the city charter or under the Railroad Law to open up the entire way in the city as a street to connect with the proposed highway in the town. It was proper, I think, to show the entire situation at the point in question.

I have examined all the other exceptions to the admission of evidence and find none that will justify a reversal of the order appealed from.

The order should be affirmed, with costs.

Order unanimously affirmed, with costs.

Cases cited

Weeks v. De Camp 151 N. Y. 557 N.Y. 1897-02-02 p. 278

Statutes and regulations cited

Highway Law p. 277, p. 278