People ex rel. Dayton v. May — 27 Barb. 238

Majority

p. 238

The People, ex rel. Dayton, commissioner of highways of the town of Cuba, vs. May and others.

Headnote

A corporation may appeal to the county court, from an order made hy a commissioner of highways laying out a highway across a rail road.

A corporation, owing land on which a highway is laid, is a, “ person,” within the meaning of the section of the revised statutes giving the right of appeal in such cases.

COMMON law certiorari to referees appointed by the county judge of Allegany county, upon an appeal by the New York and Erie Rail Road Company, from an order made by the commissioner of highways of the town of Cuba, laying out a highway across the rail road. The writ was brought for the purpose of reversing that portion of the order laying the highway across the rail road.

The commissioner laid out the highway in September, 1856, across the rail road, and the rail road company appealed to the county judge, who appointed the defendants referees to hear and determine the appeal. They did so, and reversed that part of the order laying the highway across the railway, and the commissioner of highways sued out this writ.

M. B. Champion, for the plaintiff.

J. Ganson, for the defendant.

. The counsel for the plaintiff in error insists that a corporation has no right to appeal. He refers to the act of 1853, (Laws of 1853, p. 84,) and also to the highway act, (1 R. S. 518, § 84;) the statute of 1845, chap. 180, and laws of 1847, chap. 455. I have looked into the statutes referred to, and have no doubt a corporation may appeal. By the revised statutes referred to, every per soy who shall consider himself aggrieved, &c. may appeal, &c. The act of 1845, § 10, speaks of any party or person conceiving himself aggrieved, &c. The act of 1847 uses the words, any

p. 239

person. The act of 1853 is entitled “ An act to regulate the . construction of roads and streets across rail road tracks/’ and is silent as to appeals.

[Genesee General Term,

May 17, 1858.

Grover, Marvin and Davis, Justices.]

A corporation owning land on which a highway is laid is, in my opinion, a “ person,” within the meaning of the revised statutes giving the right of appeal. The design of the statute was to give the right to all parties or persons, whether natural or artificial, who should conceive themselves aggrieved. (See 15 John. 381 , and cases there cited)

The referees reversed that part of the order which the appellant, in his appeal, specified as the portion to reverse which the appeal was brought. They had jurisdiction, in my opinion, to do this.

The proceedings must be affirmed.